Dr. Harbhajan Singh Awla vs Ministry Of Food And Civil ...
2005 Latest Caselaw 835 Del

JUDGMENT

Vikramajit Sen, J.

1. The Petitioner has challenged the legal propriety of the Order dated 22.7.2003 whereby -

"In pursuance of Clause (g) of Sub-Section (1) of Section 7 of the Warehousing Corporation Act, 1962 (58 of 1962), read with proviso to sub-rule (3 A) of Rule 4 of the Central Warehousing Corporation Rules, 1963, the Central Government hereby extends the term of Shri N.K. Choubey as Managing Director for another five years with effect from 14.5.2003 (afternoon), or until further orders, and grant of Schedule "scale of pay to him."

2. The Petitioner's assault is predicated on his interpretation of Section 7 of the Warehousing Corporation Act, 1962 (hereinafter referred to as `the Act') and Rule 4 of the Warehousing Corporation Rules, 1963 (hereinafter referred to as `the Rules') to the effect that it was mandatory that the Directors should have been consulted prior to the reappointment. The relevant provisions are reproduced for facility of reference:

7. (1) The board of directors referred to in section 6 shall consist of the following, namely:-

(g) a managing director, appointed by the Central Government in consultation with the directors referred to in clauses (a) to (f):

4. Term of office of directors and filling of casual vacancies among director:

(3A) The term of office of the Managing Director appointed under clause (g) of sub-section (1) of section 7 shall be as determined by the Central Government;

Provided that an outgoing Managing Director shall be eligible for re-appointment for such period as may be decided by the Central Government from time to time;

3. The contention of Mr. Vikas Singh, learned counsel for the Petitioner, is that consultation with the Board of Directors is an essential prerequisite even to grant an extension to the Managing Director, and since Section 7 of the Act has not been complied with the impugned appointment stands vitiated. Mr. P.P. Rao, learned Senior counsel for the Respondent, has laid emphasis on Rule 4 to submit that the decision is legally sound; he has also questioned the locus standi of the Petitioner to mount an assault thereto. Mr. Rao further submits that the Petitioner has overwhelmingly lost in his attempt to get elected to the Board and this petition has been filed to settle past scores. Furthermore, it is his submission that since only a certiorari has been prayed for the petition deserves to be rejected at the threshold as the Petitioner has no personal interest in the outcome of the petition. Reliance has been placed on the following extracted opinion expressed by the Apex Court in Ashok Kumar Pandey v. State of W.B, (2004) 3 SCC 349:

12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The attractive brand of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity-oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or a member of the public, who approaches the court if acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives.

Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs.

....

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

4. As has already been noted the Petitioner has not succeeded in his efforts to get elected to the Board of Directors of the Central Warehousing Corporation. There can be no gainsaying that the essential precondition for the issuance of a writ of certiorari is the existence of a justiciable right in favor of the Petitioner. Since this is absent the petition must be rejected on this ground alone. In an attempt to resurrect the Petition, Mr. Vikas Singh has contended that the action may be treated as a claim for the issuance of a writ of quo warranto, which writ does not require any disclosure of a personal interest or justiciable wrong. In my opinion where there is no mention of this relief in the petition it is impermissible to claim it under the omnibus phrase of "any other relief". It is extremely important to bear in mind that none of the Board Members have remonstrated against the extension of the term of the Managing Director in the impugned order. In the backdrop of the Petitioner having made a futile attempt to get elected to the Board the strong probability that the Petitioner would want to vent his spleen through litigation should not be glossed over. For the same reasons the law enunciated in Ashok Kumar's case (supra) is pithy, poignant and applicable.

5. In these circumstances, consideration of the interplay between the provisions of the Act and Rules is largely rendered otiose. Mr. Vikas Singh has drawn my attention to State of Himachal Pradesh and Anr. v. Kailash Chand Mahajan and Ors., 1992 Supp. (2) SCC 351. In that case an amendment had been introduced into the Electricity Supply Act, 1948 applicable to the State of Himachal Pradesh, which disqualified any member from continuing in office after attaining the age of 65 years. Great store has been laid on the observation of their Lordships that Section 5 of the Electricity (Supply) Act applied both to the initial appointment as well as to extensions/continuance; since the incumbent had crossed the age of superannuation the Court held that he stood disqualified from continuance in office. This ratio would apply to the present case if the Managing Director had already attained the age of superannuation or his term of reappointment extended beyond it or if the impugned order transgressed any other statutory imperative. This has not happened. Section 7 of the Act enumerates the constituents of the Board of Directors and requires that the appointment of Managing Director by the Central Government must be in "consultation" with the Directors. Once this provision is satisfied the Rules come into operation so far as the term of the Managing Director appointed under Section 7 of the Act is concerned. However, in the present case it is the powers contained in Rule 4(3A) which have been exercised, leaving no scope for the argument that Section 7 has been violated. The Managing Director, Respondent No.3 was appointed by letter dated July 9, 1999 which stated, inter alia, that his appointment will be for a period of five years with effect from 14.5.1998 in the first instance or till the age of superannuation whichever is earlier, and in accordance with the provisions of the Companies Act. In order to test the argument put forward by the Petitioner, let us assume that the initial appointment was not for a period of five years but for one year only. Would it then have been mandatory for the matter to have been placed before the Board of Directors for any extension/renewal thereof? Alternatively could it not have been specified in the letter dated July 9,1999 that the appointment was for a period of ten years instead of five years. It seems to me that the suitability of a person to perform the duties and responsibilities of the Managing Director must be considered by the Board of Directors but once that hurdle or obligation is crossed, the extent and duration of the tenure is left to the Central Government in consonance with Rule 4 (3A) of the Rules. If the Board of Directors has serious objection to the reappointment it must express its views to the Central Government which would take a decision after giving due consideration to those objections. Viewed in all its dimensions, therefore, I find no legal infirmity in the reappointment of Respondent No.3 by the Central Government exercising the powers recognised by Rule 4 (3A) of the Rules.

6. The petition is, therefore, devoid of merit and is dismissed. Owing to the brevity and refreshing conciseness of the arguments of Mr. Vikas Singh I refrain from imposing costs against the Petitioner even though none of the arguments raised on his behalf are of substance.

7. The writ petition is dismissed.