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Case Number

Original Petn. No. 4564 of 1968

Advocates

For the Appellant: S. A. Nagendran N. N. Divakaran Pillai
For the Respondent: Advocate General Amicus curiae

Judges

M. Madhavan Nair
P. Narayana Pillai, JJ.

Acts

Section 58 of the Madhya Bharat Municipal Corporation Act,
provisions of Article 16 of the Constitution

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This petition was filed by a medical graduate against the 1st respondent, an Honorary Medical Officer at the General Hospital, Ernakulam. The petitioner sought a writ of quo warranto to (i) declare the post claimed by the 1st respondent vacant, (ii) order the ouster of the 1st respondent and restrain him from performing functions of that office, and (iv) grant consequential reliefs and costs. Relief (iii) had been withdrawn by the petitioner. The State of Kerala, originally impleaded as 2nd respondent, was removed from the party array by an order allowed on January 8, 1969, but the Court heard the Advocate-General as amicus curiae.

The petitioner alleged that the Government had declared on September 24, 1968 that part-time honorary service was stopped with effect from October 1, 1968, and that because there was no longer a paucity of qualified medical personnel the Government had no authority to make new honorary appointments. The petitioner argued that any appointment could be validly made only in strict accordance with the rules published as an appendix to G.O.Ms. 665 dated 4th September, 1963, which procedure was not followed in the 1st respondent’s case.

The respondent produced a Government Order dated 16-10-1968 (Ext. P-1) by which he was appointed an Honorary Medical Officer at the General Hospital, Ernakulam, signed by the Deputy Secretary “By order of the Governor”. That order showed that two posts of Honorary Medical Officers had been created by Government in 1968, and the respondent and another person (not challenged here) were appointed to those posts. The petition was filed on 24th October, 1968.

Legal Issues Presented

Whether a writ of quo warranto lies to challenge the 1st respondent's appointment to the post of Honorary Medical Officer when the respondent produced a Government Order of appointment.
Whether the rules appended to G.O.Ms. 665 (dated 4th September, 1963) are statutory rules having the force of law such that non-conformity with them would invalidate the appointment.
Whether the Government, under Article 162 of the Constitution and List II, Entry 41 of the Seventh Schedule, had power to create and fill the honorary posts and whether the appointment was ultra vires.
Whether a challenge based on Article 16 of the Constitution (equal opportunity in public employment) can be raised in a writ of quo warranto, particularly by a petitioner who was not an aspirant to the post in question.

Arguments of the Parties

Petitioner's Arguments

The Government had declared the part-time honorary service stopped effective 1st October 1968, and therefore no lawful appointments could be made thereafter.
The respondent’s appointment was not made in strict accordance with the rules appended to G.O.Ms. 665 dated 4th September, 1963; those rules prescribe the procedure and must be followed.
The rules appended to G.O.Ms. 665 were framed under Article 162 of the Constitution and hence must be treated as having the force of law; appointments made without complying with them are invalid.
The Government, when creating and filling posts, must observe Article 16 of the Constitution (including advertising vacancies), which was not done in this case.
The requirement of personal interest to sustain a writ does not extend to quo warranto; hence the petitioner can challenge the appointment even if he was not an aspirant to the honorary post.

Respondent's / Government Position (as reflected in the record)

The respondent produced the Government Order dated 16-10-1968 appointing him as an Honorary Medical Officer (Ext. P-1), demonstrating authority for his possession of the office.
The Government created two honorary posts in 1968 and appointed the respondent and another person to them; that appointment was made by the executive “by order of the Governor”.
The Government has executive power under Article 162 read with List II, Entry 41 of the Seventh Schedule to create posts and appoint competent persons thereto.
The Court also heard the Advocate-General as amicus curiae; the opinion does not detail specific submissions made by the Advocate-General in the text provided.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491	Defines the scope of quo warranto: courts control executive appointments against statutory provisions; quo warranto protects the public from usurpers; petitioner must show office is public and held by a usurper and that appointment was not made in accordance with law; distinguishes tests appropriate to certiorari.	The Court relied on this decision to frame the proper scope of enquiry in a quo warranto petition and to emphasise that the issue is whether appointment contravened any statutory or binding rule.
G.J. Fernandez v. State of Mysore, AIR 1967 SC 1753	Holds that Article 162 indicates scope of executive power but does not confer power to make rules having force of law; where no statutory source exists, executive instructions are administrative not statutory.	The Court applied this principle to conclude that the rules appended to G.O.Ms. 665 are administrative instructions and not statutory rules with the force of law.
B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942	Explains relationship between Articles 162 and 309; Article 162 provides executive power and Article 309's proviso does not make it obligatory to frame rules before constituting a service; executive can act under Article 162 without a law.	The Court cited this authority (and Ram Jawaya Kapur) to support the view that the State has executive competence to create and fill posts under Article 162 and that rules not traceable to statute are not automatically laws.
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549	Held that it is not necessary that a law must pre-exist before executive action can be taken; executive powers are not limited merely to carrying out pre-existing laws.	Used to support the proposition that the executive may create posts and fill them under its Article 162 powers even in the absence of prior statutory rules.
Tropical Insurance Co. Ltd. v. Union of India, AIR 1955 SC 789	Procedural principle cited: points not put forth in the petition cannot be urged at final hearing.	The Court invoked this precedent to reject a contention that had not been put forward originally in the petition (regarding obligation to advertise under Article 16 in this petition).
All Lidia Station Masters' and Assistant Station Masters' Association v. General Manager, Central Railway, AIR 1960 SC 384	Holds that equality of opportunity in employment under Article 16 applies between persons who are seeking the same employment or have obtained the same employment.	The Court relied on this principle to conclude that Article 16 cannot be invoked by one who was not an aspirant to the post challenged in the quo warranto petition.
Calcutta Gas Co., Ltd. v. State of West Bengal, AIR 1962 SC 1044	Observes that rights enforceable under Article 226 are ordinarily personal or individual rights of the petitioner, with some relaxation for writs like habeas corpus or quo warranto where the rule may be modified.	The Court used this authority to support the conclusion that the petitioner must ordinarily have a personal right or grievance and that this petition did not show such personal aggrievement regarding the honorary post.
Narayan Keshav Dandekar v. R.C. Rathi, AIR 1963 Madh Pra 17	Example where violation of Article 16 and contravention of a statutory provision (Section 58 of the Madhya Bharat Municipal Corporation Act) led to issuance of quo warranto by the Madhya Pradesh High Court.	The Court distinguished this decision and held it could not be treated as precedent for issuing quo warranto for mere contravention of Article 16 in absence of a statutory contravention.
Abdul Rahiman Khan v. Sadasiva Tripathi, AIR 1969 SC 302	Holds that contracts with the State not complying with Article 299 are unenforceable, and that non-conformity with constitutional provisions can have consequences; a Government Order not conforming with Article 16 may be quashed by certiorari but may still be sufficient answer to quo warranto.	The Court relied on this authority to emphasise that possession of public office under a Government Order is not necessarily usurpation (for quo warranto), even if the Government Order is quashable by certiorari for constitutional violation.

Court's Reasoning and Analysis

The Court began by stating the scope of enquiry in quo warranto (drawing on University of Mysore v. C.D. Govinda Rao): quo warranto is concerned with the authority of the respondent to hold a substantive public office and whether the appointment was made in accordance with any statutory provision. If the respondent produces the Government Order of appointment, the Court's task is to examine whether that appointment violates any statute or binding legal provision.

The petitioner relied on rules appended to G.O.Ms. 665 (published in the Kerala Gazette dated 10th September, 1963) and claimed the respondent’s appointment was not in strict accordance with those rules. The Court examined whether those rules are statutory in nature. It found (relying on G.J. Fernandez v. State of Mysore) that Article 162 only indicates the scope of executive power and does not itself confer power to make rules having the force of law. The Court therefore held that the rules in question are administrative instructions and not statutory rules.

Because the rules were administrative and not statutory, their violation could not sustain a writ petition under Article 226. The Court further observed (citing B.N. Nagarajan and Ram Jawaya Kapur) that the executive has competence under Article 162 (read with List II, Entry 41) to create posts and appoint competent persons even in the absence of a legislative rule prescribing procedure. Ext. P-1 (the Government Order dated 16-10-1968) showed that the Government had sanctioned the respondent’s appointment, and the petition (filed on 24th October, 1968) seeking information as to his appointment could not displace that evidence of authority.

The Court also addressed the Article 16 point. It held that a challenge based on Article 16 cannot be raised in a writ of quo warranto by a person who was not an aspirant to the specific post, citing the principle that equality of opportunity under Article 16 is only between persons seeking the same employment (All Lidia Station Masters' ...). The Court observed that Article 16 challenges are more appropriately considered in proceedings for certiorari or prohibition, and that quo warranto is limited to whether an appointment was by proper authority and in accordance with law where an express statute governs the appointment.

Finally, the Court emphasised that possession of public office under a Government Order is not usurpation merely because the Government Order may be quashable for violating constitutional guarantees; such quashability is a matter for certiorari. Consequently, the petitioner’s challenge based on alleged non-compliance with administrative rules and on Article 16 failed to establish that the respondent was a usurper or that the appointment was ultra vires.

Holding and Implications

Holding: Petition dismissed.

Implications and immediate effects as stated in the opinion:

The petition for quo warranto was found to be without force and dismissed.
The respondent's possession of the office pursuant to the Government Order dated 16-10-1968 was not held to be usurpation; the appointment was not declared ultra vires on the grounds advanced in this petition.
No order was made as to costs on this motion.
The Court's reasoning clarifies that (a) administrative instructions or rules issued under Article 162 not traceable to statute are not of the force of law for purposes of quo warranto; and (b) alleged contraventions of Article 16, where the petitioner was not an aspirant to the post, are not maintainable in quo warranto but are matters for other remedies (such as certiorari) if appropriate. The opinion does not purport to lay down any novel legal principle beyond these applications of existing precedents cited in the judgment.

This summary is based exclusively on the text of the provided opinion and does not introduce facts or inferences not contained therein.

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Alex Beets, v. M.A Urmese And Another,

Madhavan Nair, J.:— This petition has been moved by a medical graduate against an Honorary Medical Officer, and is for the reliefs:

“…… to issue a writ of quo warranto against the 1st respondent, and

(i) Declare that the post that the first respondent now claims to occupy in the General Hospital at Ernakulam is vacant;

(ii) Order the ouster of the first respondent from such office and restrain him from exercising any functions or duties relating to such office;

(iii)……………………………

(iv) all such other consequential or ancillary reliefs as may be deemed just and necessary in the circumstances of the case; and allow this writ petition with costs”.

2. Relief No. (iii) has been withdrawn and the State of Kerala, who was originally impleaded as the 2nd respondent to this motion, has been removed from the party array by the petitioner as per C.M.P No. 46 of 1969, which was allowed by the Court on January 8, 1969. However, we have heard the learned Advocate-General as amicus curiae in the matter. The allegations in the motion, relevant to the reliefs now urged, are thus:

“……the Government had…. declared…… on September 24th, 1968, that the Part-time Honorary service is stopped altogether all over the State with effect from 1st October 1968……this ending of the part-time honorary service had long since become expedient in the light of the fact that it had been started for the sole reason that at the time there were no sufficient number of qualified medical personnel available for appointment in regular Government service……This state of ‘paucity of qualified medical personnel for appointment in Government service’ however rapidly disappeared, and……there are already more than 140 qualified medical graduates of the State waiting for appointment and a further about 60 more such hands would be finishing their ‘House Surgeoncy’ this month and joining this army of unemployed medical personnel. In the face of this situation the Government can have absolutely no just cause or lawful right or legal authority to appoint any more such honorary and part-time officers in any of its hospitals or medical institutions in the State. Any such appointment if made will therefore be illegal and ultra vires of its powers under law, as well as it would be mala fide, and a manifest abuse of, or fraud on power. Nevertheless it is seen claimed by the first respondent……that he has again been reappointed…… to continue for another term as a part-time honorary medical officer in the General Hospital Ernakulam…Indeed, apart from the position that the Government has now no authority under law to make such appointment as has already been indicated above, any such appointment could ever be validly and honestly made only in strict accordance with the existing rules and notifications expressly laying down the procedure governing such appointments, namely the rules published as appendix to G.O.Ms 665 dated 4th September, 1963, of the Health and Labour (A) Department, Government of Kerala. This has not been done in the case of the 1st respondent's alleged appointment, although he appears to be still in actual possession of the office in question. He is therefore in such possession of the office illegally and as a mere usurper;……”

3. The respondent has produced the Government Order dated 16-10-1968 by which he has been appointed as Honorary Medical Officer at the General Hospital, Ernakulam. It is signed by the Deputy Secretary “By order of the Governor”. That order shows that only two posts of Honorary Medical Officers have been created by Government in 1968, and the respondent and another, whose appointment is not in challenge here, were appointed thereto.

4. The scope of enquiry in a motion for quo warranto has been indicated by the Supreme Court in The University of Mysore v. C.D Govinda Rao, AIR 1965 SC 491 thus:

“…… 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, it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by a usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not…… In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance…….”

5. Quo warranto is only information as to the authority of the respondent to hold a substantive public office. When the respondent has produced in Court the Government Order appointing him to the office, the Court has only to enquire if the appointment is in violation of any statutory provision on the matter. It has been alleged by the petitioner that the respondent's appointment was not “in strict accordance with……the rules published as Appendix to G.O.Ms 665 dated 4th September, 1953.” Those rules do not refer to applications being invited or entertained for appointment; but provide for recommendation by a committee for appointment as Honorary Medical Officers. The rules are published in the Kerala Gazette dated 10th September, 1963, along with G.O.Ms 665, to which it is appended, and a form of application. That G.O invited applications in the form given for appointment as Honorary Medical Officers to be submitted before 15-9-1963 and it is stated at the bar that 99 inclusive of the present respondent were then appointed.

6. The question material is whether the rules appended to that G.O detailing the terms and conditions of service of the Honorary Medical Officers are statutory Rides. Obviously, and admittedly, they are not. The contention is that the rules having been framed by the Government by virtue of its powers under Article 162 of the Constitution, must be taken to have the force of law, and therefore an appointment made without conformity therewith will entitle a writ of quo warranto.

7. We find little force in this argument. In G.J Fernandez v. State of Mysore, AIR 1967 SC 1753 the Supreme Court has observed:

“Learned counsel for the appellant is unable to point out any statute under which these instructions in the Code were framed.…… But his contention is that they are rules issued under Article 162 of the Constitution. Now Article 162 provides that ‘executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws’. This Article in our opinion merely indicates the scope of the executive power of the State; it does not confer any power on the State Government to issue rules thereunder. As a matter of fact wherever the Constitution envisages issue of rules it has so provided in specific terms. We may, for example, refer to Article 309, the proviso to which lays down in specific terms that the President or the Governor of a State may make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the Union or the State. We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State……. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the Court for quashing orders in breach of such instructions.”

8. Counsel for petitioner contends that the Government can act and therefore appoint respondent to a public office only under a law and that therefore the Rules under which the respondent is appointed must have been intended and must be reckoned to have the force of law. In B.N Nagarajan v. State of Mysore, AIR 1966 SC 1942 the Supreme Court has observed:

“First it is not obligatory under proviso to Article 309 to make rules of recruitment etc., before a service can be constituted or a post created or filled…… Secondly, the State Government has executive power, in relation to all matters with respect to which the legislature of the State has power, to make laws. It follows from this that the State Government will have executive power in respect of List II, Entry 41, State Public Services. It was settled by this Court in Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, that it is not necessary that there must be a law already in existence before the executive is enabled to function and that the powers of the executive are limited merely to the carrying out of these laws. We see nothing in terms of Article 309 of the Constitution which abridges the power of the Executive to act under Article 162 of the Constitution without a law”.

9. It is obvious that the Rules in question, which are not traced to any statute but only to the executive power under Article 162 of the Constitution, cannot be regarded as laws or to have the force of law. The allegation that the respondent's appointment is in contravention of rules having force of law has therefore to be overruled.

10. If the Rules have no force of law and are only administrative instructions, their violation will not sustain a writ motion under Article 226 of the Constitution. Ext. P-1 shows clearly that the Government had on October 16, 1968, sanctioned the appointment of the respondent as an Honorary Medical Officer in the General Hospital, Ernakulam. This petition is filed on 24th October, 1968, for information as to his appointment. The challenge delivered to the appointment as not warranted by law fails. As the Government by virtue of its powers under Article 162 read with List II, Entry 41 in the VII Schedule, is competent to create a post and to fill it by a competent person, it cannot be said that the respondent's appointment is ultra vires, and this motion for a writ of quo warranto has also to fail.

11. Counsel contended that whenever a post in public service is created and filled, the Government is bound to observe the provisions of Article 16 of the Constitution and advertise an invitation for applications thereto, which has not been done in this case and therefore the respondent's appointment is illegal. Such a case has not been put forth in this petition, and therefore cannot be urged at the final hearing thereon. Vide: The Tropical Insurance Co. Ltd. v. Union of India, AIR 1955 SC 789.

12. Secondly, a challenge to a particular appointment as contravening Article 16 of the Constitution cannot be urged by one who was not and is not an aspirant to the post. Referring to Article 16 of the Constitution, in All Lidia Station Masters' and Assistant Station Masters' Association v. General Manager, Central Railway, AIR 1960 SC 384 the Supreme Court has held:

“Equality of opportunity in matters of employment can be predicated only as between persons, who are either seeking the same employment or have obtained the same employment”.

13. In Calcutta Gas Co., Ltd. v. State of West Bengal, AIR 1962 SC 1044 the Supreme Court has pointed out:

“The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified”.

14. The petitioner wanted an appointment and has been appointed only as a regular Medical Officer in the Health Service, and not as an Honorary Medical Officer. He cannot claim to be personally aggrieved by the respondent's appointment to a post to which he was no aspirant.

15. Counsel for petitioner contends that the requirement of a personal interest to sustain a writ motion does not extend to motion for quo warranto, which is the case here. We are afraid that challenge of an order under Article 16 of the Constitution cannot be heard in a motion for quo warranto: it can be heard in a motion for certiorari or prohibition. The scope of a quo warranto is very limited, namely, whether the appointment of the respondent is by a proper authority and in accordance with law if there is an express statute governing such appointment. The argument that what cannot be urged for other writs can well be urged for a writ of quo warranto, and therefore the denial of equality under Article 16 which the petitioner could not have urged in a motion for certiorari or prohibition can be urged in the present motion for a quo warranto, is not warranted by the nature of the procedure pointed out by the Supreme Court (AIR 1965 SC 491) and has to be rejected.

16. Counsel for petitioner cited Narayan Keshav Dandekar v. R.C Rathi, AIR 1963 Madh Pra 17 where reference has been made to a violation of Article 16 of the Constitution as a ground for issuance of a writ of quo warranto. In that case their Lordships of the Madhya Pradesh High Court have found the impugned appointment to have been made in contravention of “Section 58 of the Madhya Bharat Municipal Corporation Act,” and that itself necessitated the issuance of a quo warranto. Their Lordships went further to point out other defects in the impugned appointment and observed that it violated Article 16 of the Constitution and ultimately concluded the judgment by issue of a quo warranto. In our opinion, that decision cannot be a precedent for issuance of a writ of quo warranto for mere contravention of Article 16 of the Constitution.

17. In Abdul Rahiman Khan v. Sadasiva Tripathi, AIR 1969 SC 302 the Supreme Court has held a contract with the State not complying with Article 299 of the Constitution and therefore unenforceable against the State to be a contract disqualifying the contractor from standing for election to the legislature. That is clear precedent that what is not in conformity with provisions of the Constitution cannot be ignored for all purposes. A Government Order not conforming with Article 16 of the Constitution may be quashed by a certiorari but may be a sufficient answer to a quo warranto. Possession of a public office under a Government order is not usurpation of office, for which alone quo warranto lies, and even if the Government Order is violative of fundamental rights it will not be void, though quashable by a writ of certiorari.

18. In view of our conclusions above, it is unnecessary to refer to the other citations made by the learned advocate for the petitioner for the proposition “that an executive action like an appointment to a new office made in violation of the guarantees of equal opportunity conferred by Article 16 of the Constitution is not in accordance with law and therefore illegal and void incapable of supporting the occupation of a public office lawfully.” The petition is found to be without force and is hereby dismissed. We make no order as to costs on this motion.

19. Petition dismissed.

Alex Beets, v. M.A Urmese And Another,

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's / Government Position (as reflected in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Alex Beets, v. M.A Urmese And Another,

Comments