P.S Sahay, J.:— The petitioner who is an elected member of the Bihar Legislative Assembly from Sahar Constituency in the district of Bhojpur, has moved this Court questioning the validity of the appointment of respondent No. 6 to the post of Superintending Engineer, Housing Department, by the order of the Board dated 4-11-1980, as contained in Annexure-1, and to call up-on him as to why a writ in the nature of quo warranto be not issued directing him to show cause under what authority he was holding that post which was illegal, unjustified and ultra vires of the provisions of the Housing Board Ordinance.

2. In order to appreciate the points, which have been raised on behalf of the petitioner, it will be necessary to state some facts. But it may be stated that many irrelevant facts have been brought on the record of this case by the different parties with the result that the brief runs to about three hundred and fifty pages and I will refer to the relevant facts only from the petition, counter-affidavits and reply thereto and supplementary affidavit filed on behalf of the parties. Housing Board, which is a statutory body, was created under Ordinance No. 119 of 1972 which was notified on 18-8-1972. The Ordinance is being renewed from time to time till it has become an Act now. Under the provisions of the Ordinance many posts, including the post of Superintending Engineer, have been created and under Section 16(3)(1) of the Ordinance the Board, with the previous approval of the State Government, may sanction the creation of any post, the maximum scale of which exceed Rs. 1,580/- per month and for the appointment on such posts consultation with the Public Service Commission has to be made prior to the appointment.

3. The respondent No. 6 was working as Executive Engineer Urban Development (Housing Department) in the year 1972. When the Ordinance came into force his services were transferred on 1-9-1972 and he was posted as Executive Engineer, Jamshedpur. On 1-3-1978 he was appointed as Superintending Engineer in charge Ranchi Division but respondent No. 6 could not stay there longer because Sri J.G.P Sinha, who was earlier holding that post, was asked to continue on that post. On 4-11-1980 the State Government directed the Board to make appointment to the post of Superintending Engineer after consulting the Bihar Public Service Commission; a true copy of the letter has been filed and marked Annexure 2. The Chairman did not act according to the direction of the State Government and issued notification appointing respondent No. 6 on the post of Superintending Engineer with effect from 1-3-1978. Some questions were raised in the Assembly regarding this irregular appointment of respondent No. 6 and reply was given that Public Service Commission will be consulted and all other formalities will be observed with regard to this appointment; a copy of the reply given on the floor of the Assembly has been filed and marked Annexure-3. Thereafter the Government, after examining the position, set aside the order passed by the Chairman, as contained in Annexure-1, under Section 23 of the Act on 23-6-1981; a copy of the order of the State Government has been filed and marked as Annexure-4. In spite of that, according to the petitioner, the respondent No. 6 was holding that post in collusion with the Chairman of the Housing Board On 20-7-1981 the Sate Government recalled its previous order as contained in Annexure-4, a copy of the same has been filed with the counter-affidavit and marked as Annexure-9. This writ application was filed on 17-8-1981 and was admitted. Counter-affidavit has been filed on behalf of the Board in which it is stated that after the creation of the Board in 1972 the services of technical staff of the Housing Department, including that of respondent No. 6, were transferred to the Board on the condition that till new rules were not framed by the Board their service condition will be governed on the same terms and conditions as applicable to those persons who were serving the State Government; a true copy of the notification has been filed and marked Annexure-A. Respondent No. 6, who had joined as Executive Engineer, was confirmed on that post and he was the senior most Executive Engineer and he was made Superintending Engineer in charge; a copy of the order has been filed and marked Annexure-E. The Board made enquiries from the State Government whether the concurrence of the Public Service Commission for the promotion to the post of Superintending Engineer was necessary and a copy of the letter has been filed and marked Annexure-F. A reply was received that no concurrence was necessary; a copy of the reply of the State Government dated 3-1-1978 has been filed and marked Annexure-G. Thereafter all the formalities were completed and no objection certificate was also obtained from Vigilance Department and the notification was issued on 4-11-1980 appointing respondent No. 6 as Superintending Engineer and this was approved by the members of the Board on 15-11-1980. The promotion of respondent No. 6 has been justified on various grounds and it has been stated that the petitioner and his companions tried to create vested interest in the affairs of the Board and had been trying to put various impediments in its working and the application was not filed in a bona fied manner. As regards Annexure-4 it has been stated that it was issued under some wrong apprehension and full facts were not brought to the notice of the State Government and when all facts came to its knowledge Annexure-9 was issued. In the supplementary affidavit it was asserted on behalf of the petitioner that during the pendency of this application, concurrence of the Public Service Commission was sought for after the writ application was admitted and the Commission made some queries with regard to respondent No. 6 a copy of the letter dated 13-11-1981 has been filed and marked Annexure-7. In the affidavit filed on behalf of respondent No. 6 a number of documents have been filed in order to show that the promotion has been done in a legal manner giving the background from the year 1970 and a number of documents have been filed and they have been marked as Annexure-A to Annexure-H of the main affidavit and Annexure-X series in reply to respondent No. 6 in the supplementary counter-affidavit filed on his behalf. In this supplementary counter-affidavit, in para 7, it has been stated that the petitioner along with some persons, who are still members of the Assembly and some ex-members have been trying to harass him because he could not oblige them for their illegal demands and all of them have set up this petition only to harass him. In the affidavit filed on 20-4-1982 it has been stated that in order to avoid confusion the Housing Board made consultation with the Public Service Commission and the Commission, after full investigation and after examining all necessary materials, has given its post facto concurrence and it was communicated under letter No. 17 dated 13-3-1982. The opinion of the Advocate General, given to the Minister Housing, has also been filed in which the action of the Board has been supported. In the affidavit filed on behalf of the State, the notification issued on 20-7-1981 has been justified and it is stated that it was done after full consideration.

4. A preliminary objection has been raised by Sri Ram Janam Ojha, learned counsel appearing for the Board, that the petitioner for the Board, that the petitioner is a member of the legislative where there is no Housing Board and the appointment of respondent No. 6 as Superintending Engineer, Ranchi, has been challenged and in that view of the matter, the application was not maintainable. In my opinion, the contention raised by Mr. Ojha is devoid of any substance and has to be rejected. The petitioner has, no doubt, been elected from Sahar constituency in the district of Bhojpur but as a member of the legislative Assembly he has a right to come to the Court and challenge the action of the Government which, according to him, may not be legal. Even an ordinary citizen can come to this Court in order to challenge the authority of a person holding a public office. What would be the result is a different matter altogether. But it is different to hold that the petitioner, in the instant case, has no locus standi.

5. Sri Shayama Prasad Mukherjee, appearing on behalf of the petitioner, has contended that the respondent No. 6 was holding public office without any authority and, therefore, this Court should issue a writ in the nature of quo warranto. He has further submitted that the Chairman and the members of the Board have not acted according to the provisions of the statute and it amounts to fraud on power and in that view of the matter, Annexure-1 is fit to be quashed. It has also been submitted on his behalf that before appointing respondent No. 6 concurrence by the Public Service Commission was a must and the post facto concurrence, which was taken after the filing of this writ application, will not cure the illegality. It has been further urged that the State Government, by its notification dated 23-6-81 as contained in Annexure-4, had set aside the order by the Chairman as contained in Annexure-1, and Annexure-4 could be revoked only by another notification and not by mere letter as it has been done by Annexure-1. Mr. Ram Janam Ojha, learned counsel appearing for the Board, has submitted that the application is wholly mala fide, it is intended to pressurise and coerce respondent No. 6, who is a public servant. He has also urged that the petitioner has actually field this writ application for the issuance of writ of certiorari in the instant case. He has submitted that from the facts it was clear that the action of the Housing Board was a bona fide one and there was no question of usurpation of office by the petitioner by respondent No. 6. In short, the promotion of respondent No. 6 has been supported and there has been no breach of the law, procedure and the rules in the appointment of respondent No. 6. Mr. Bindeshwari Chaudhuri, appearing on behalf of respondent No. 6, has submitted that material facts have been suppressed and on that ground alone the writ was fit to be dismissed. He has also supported the action of the Board which, according to him, was legal and justified and even if there was a lacuna that has been filled up. He has further submitted that respondent No. 6 was not a new occupier of the office and he has been already working there since before and even if the writ was allowed his permanent appointment for the post of Superintending Engineer will be quashed but he will continue on officiating basis as he was doing it earlier prior to his permanent appointment and in that view of the matter, writ petition even if allowed, will be futile. He has also submitted that even if consultation of the Commission was necessary post facto concurrence had been obtained which was permissible under the law. This stand of respondent No. 6 had also been supported by Mr. Ojha, Mr. Chaudhuri has lastly submitted that Annexure-4 was never published in the Gazette and in that view of the matter, no notification was necessary to cancel it. Learned Advocate has also supported the appointment of respondent No. 6 and has submitted that the appointment has been made after taking into consideration all facts, which were necessary to be considered and then Annexure-1 was issued. He has also urged that respondent No. 6 was senior most officer, having good record of service, and was holding the post under valid order, and, therefore, the petition was fit to be dismissed.

6. Before I deal with the points raised, I win briefly mention about the nature, scope and ambit of a writ of quo warranto. A writ of quo warranto poses a question to the holder of a public office, in plain English language. The question is “where is your warrant of appointment by which are holding this office?” Quo warranto is a concept of English jurisprudence which has been adopted in our Constitution under Articles 32 and 226. The ancient writ of quo warranto used to be issued in England by the Crown against a usurper, mis-usurper or non-usurper or pretender of a public office or court or public franchise. In England such a writ was issued on behalf of the Crown requiring a person to know under what authority he was exercising his office, franchise or liberty. Its essential condition and scope has been modified from time to time and the basic conditions are that the office must be public, it must have been created by statute or Constitution itself, it must be of a substantive character and that the holder of the office must not be legally qualified to hold the office or to remain in the office or he has not been appointed in accordance with law.

7. Halsbury's Laws of England, 3rd Edition Vol II, Para. 281, contains a summary of the decision of English Courts with regard to the discretion in a Court in issuing a writ of quo warranto “an information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course, which is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case ………… the Court might, in its discretion, decline to grant a quo warranto information where it would be vexatious to do so or where an information would be futile in its result, or where there was an alternative remedy which was equally appropriate and effective. In the case of University of Mysore v. C.D Govinda Rao (AIR 1965 SC 491) the same principle has been reiterated and their Lordships had held 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 appointment of the said alleged usurper has been made, in accordance with law or not.

8. A quo warranto is distinct from the writ of certiorari because in a writ of certiorari the right can be enforced under Art. 226 and, in this connection, reference can be made to the decisions of the Supreme Court in the case of Tropical Insurance Co. Ltd. v. Union of India, (AIR 1955 SC 789) and All India Station Masters and Assistant Station Masters Association v. General Manage, Central Railways; (AIR 1960 SC 384) and the Calcutta Gas Company Ltd. v. State of West Bengal, (AIR 1962 SC 1044), Keeping these principles in my mind, now I proceed, to consider whether a writ can be granted in the instant case, as prayed for.

9. The services of respondent No. 6 was transferred to the Housing Department in the year 1972 and he was working as Executive Engineer and he was given the scale of a selection grade in the year 1974. He was promoted temporarily to the post of Superintending Engineer and by notification dated 4-11-1980 he was asked to take over charge of Superintending Engineer, Ranchi, by the Board, by its notification dated 4-11-1980 as contained in Annexure-G, he was appointed with effect from 1-3-1978. This was approved by the Board on 15-11-80, Annexure-G/1, and he was holding that post. This fact has been admitted in the rejoinder to the counter-affidavit filed on behalf of respondents Nos. 3 to 5 by the petitioner. It will be relevant to quote paragraph 5 which runs as follows:

“That with regard to the statements made in para. 9 of the counter-affidavit filed on behalf of respondents 3 and 5 is misleading. It may be stated here that it is dear from Annexures D and D/1 of the counter-affidavit that respondent No. 6 has been made in charge of Superintending Engineer of the Bihar State Housing Board, Ranchi Circle”.

Now, even if Annexure-1 is quashed, as prayed for by the petitioner, the position will be that respondent No. 6 will continue to hold the same post as “In charge Superintending Engineer”. Therefore, if a writ of quo warranto is issued it will be futile and even after the quashing of Annexure-1 respondent No. 6 will continue to hold the post. In the Full Bench case of the Delhi High Court in the case of Ajit Nath Ray, the Chief Justice of India (AIR 1975 Delhi 66) it has been held that a writ of quo warranto will be futile if the then Chief Justice of India is asked to vacate the office but he can be re-appointed again because of the fact that persons, who were senior to him, had already resigned. The position is much better in the instant case because respondent No. 6 the senior most in the rank has been holding that post since long. It is also not necessary to adjudicate on the disputed questions of fact, which have been raised on behalf of the parties, as to whether it was a post for selection or promotion as required under Ss. 16 and 18 of the Ordinance and the procedure relating to the appointment to such post. I may add that the arguments, which had been advanced before us, were good arguments and fit to foe considered in a case where there is a prayer for the issue of writ of certiorari. The scope of quo warranto, as it has been discussed earlier, is very limited and this Court has to see whether the appointment of respondent No. 6 is by proper authority and in accordance, with law. I may, further, add that possession public office under a Government order is not usurpation of office for which alone writ of quo warranto lies. Even if Government order is violative of fundamental rights or against the rules and procedure laid down under the law, it will not foe void, though liable to be quashed by writ of certiorari. Such petition could be maintained by a person who had the legal right to challenge the same. In that view of the matter, it will not be necessary to consider the detailed arguments of Mr. Mukherjee and Mr. Chaudhuri regarding the issuance of notification to recall the Order, as contained in Annexure-4, by Annexure-1. Learned counsel, appearing for the petitioner, in this connection, has relied in the cases of Mahendra Singh Gill v. State of Panjab* AIR 1978 SC 851); Sadar Anjuman Ahmediyya Muslim Mission v. State of Andhra Pradesh (AIR 1980 Andh Pra 246); Patna Improvement Trust v. Smt. Lakshmi Devi (AIR 1963 SC 1077); and S.P Gupta v. Union of India, (AIR 1982 SC 149). Similarly, detailed arguments had been made regarding the concurrence of the Public Service Commission and it has been vehemently argued by Mr. Mukherjee that the consultation must be obtained prior to the appointment and, in this connection, reliance has been placed in the cases of Chandra Mohan v. State of U.P (AIR 1966 SC 1987); and K.S Srinivasan v. Union Of India, (AIR 1958 SC 419). On the other hand, Sri Chaudhuri has submitted that even if consultation was not obtained prior to the appointment it has been taken subsequently and a post facto concurrence is permissible under the law. In this connection he has referred to the cases of State Of U.P v. Manbodhan Lal Srivastava, (AIR 1957 SC 912); U.P Bhatt v. Union of India (AIR 1962 SC 1344) and Badri Narain Mehta v. State of Bihar, (1966 BLJR 697). Learned Advocate General and Mr. Ojha, appearing on behalf of the Board, have also supported the stand of Mr. Chaudhuri, but, as I have said earlier, it is not, at all, necessary to decide this point in this case.

10. Taking all these facts into consideration and the points raised and after going through the detailed submissions of the learned counsel appearing for the parties, in my opinion, the petitioner has not made out a case for issuing a writ in the nature of quo warranto. Respondent No. 6 has been holding this office from before by valid order which had not been challenged and what had been challenged by the petitioner, is his appointment on permanent basis on that post and that cannot be decided in a case of quo warranto. It is also not necessary to go into the question of mala fides of the Board, as alleged by the petitioner, and mala fide action of the petitioner, as alleged on behalf of respondent No. 6. I am, therefore, satisfied that respondent No. 6 is not an usurper of office and the petitioner is, thus, not entitled to any relief. The application is, accordingly, dismissed. But, in the circumstances of the case, there will be no order as to costs.

S.B Sanyal, J.:— I agree.

Petition dismissed.