Manipur High Court

Dr. Ratna Mutum vs The Commissioner (Arts & Culture) on 11 March, 2021

                                        [1]


                    IN THE HIGH COURT OF MANIPUR
                                  AT IMPHAL
                            W.P. (C) No. 35 of 2020



      Dr. Ratna Mutum, aged about 49 years, W/o R.K. Athoiba resident of
      B.T.M. Complex Lamdeng Khunou, Lamsang, P.O. & P.S. Lamsang,
      District Imphal West, Manipur-795146.
                                                             ...Petitioner
                                    -Versus-
      1.   The Commissioner (Arts & Culture), Directorate of Arts and Culture,
           Palace Compound, Imphal, Manipur-795001.
      2.   The Director (Arts & Culture), Directorate of Arts & Culture, Palace
           Compound, Imphal, Manipur-795001.
      3.   Curator, Manipur State Museum, Polo Ground, District Imphal West,
           Manipur-795001.
      4.   Manipur University, Canchipur, Imphal, Manipur, 795003
           represented by the Vice-Chancellor/Administrator/Registrar.
      5.   Dr. Laishram Sadhana Devi, aged about 51 years, D/o Laishram
           Jugeshor Singh a resident of Western Palace Compound, District
           Imphal West, Manipur-795001.
                                                                ... Respondents

B E F O R E HON'BLE MR. JUSTICE KH. NOBIN SINGH For the petitioner :: Shri T. Momo, Advocate For the Respondents :: Shri S. Biswajit Meitei, Advocate;

Shri B.P. Sahu, Senior Advocate & Shri Th. Sukumar, Govt. Advocate.

  Date of Hearing                 :: 10-02-2021
  Date of Judgment & Order        :: 11-03-2021

                            JUDGMENT AND ORDER


[1]        Heard Shri T. Momo, learned Advocate appearing for the

petitioner; Shri S. Biswajit Meitei, learned Advocate appearing for the

private respondent; Shri B.P. Sahu, learned Senior Advocate appearing for

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[2]

the Manipur University and Shri Th. Sukumar, learned Government

Advocate appearing for the State respondents.

[2] In the instant writ petition, the following prayers, in short, have

been made by the petitioner:

(a) to issue a writ of quo-warranto declaring that the private

respondent No.5 holding the public post of the Guide Lecturer in

Manipur State Museum from 16-12-2011 on contract basis and

thereafter, from 29-11-2016 on regular basis as illegal, void

ab-initio and a nullity in the eyes of law being violative of the

provisions of the Education Department, Government of Manipur

(Guide Lecturer of Manipur State Museum) Recruitment Rules,

1981;

(b) to issue a writ of certiorari or any other appropriate writ quashing

the impugned agreement dated 16-12-2011 executed between

the respondent No.2 and the private respondent No.5 for

engagement as the Guide Lecturer in the Department of Arts

and Culture, Manipur State Museum;

(c) to quash and set aside the Government order dated 29-11-2016

issued by the respondent No.2 as regards the regularization of

the private respondent No.5;

(d) to quash and set aside the corrigendum undated but shown to

have been signed by the Registrar, Manipur University on 08-01-

2020;

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                                       [3]

(e) To issue a writ of mandamus or any other appropriate writ

directing the respondent No.4, Manipur University not to

consider the claim of work experience submitted by the private

respondent No.5 during the period from 16-12-2011 till date after

the private respondent No.5 being declared as occupying

illegally the public post of the Guide Lecturer in the Manipur

State Museum.

[3.1] According to the petitioner, she had been serving as the

Assistant Curator in the Manipur University Museum, Manipur University

on contract basis for more than 13 years as on 14-01-2020.

[3.2] The Department of Personnel and Administrative Reforms

(Personnel Division), Government of Manipur issued a notification dated

29-09-1981 making a rule called "the Education Department, Government

of Manipur (Guide Lecturer of Manipur State Museum) Recruitment Rules,

1981" (hereinafter referred to as "the Recruitment Rules, 1981") and in

terms of the provisions thereof, the post of the Guide Lecturer is to be filled

up by way of direct recruitment subject to the conditions mentioned therein,

one of which being the following:

"30 years and below (Upper Age limit is relax able by 5 years for SC/ST candidates and by 10 years for Government Servants who are appointed on regular basis under the Government of Manipur and by 15 years for those Government Servants who belong to SC/ST".

[3.3] The private respondent No.5 was allegedly born on 05-01-1970

as per the certificate of her High School Leaving Certificate Examination

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[4]

issued by the Board of Secondary Education, Manipur and therefore, she

had already attained the age of 41 years as on 16-12-2011. In terms of the

provisions of the Recruitment Rules, 1981, she was not eligible for

appointment to the post of the Guide Lecturer, Manipur State Museum as

she had already become age-barred. The private respondent No.5

surreptitiously hatched a pre-planned conspiracy with the State officials to

deliberately bypass the mandatory statutory rules as provided in column

No.6 of the Recruitment Rules, 1981. The State officials with a view to get

personal gains and in an illegal manner, chose to indirectly accommodate

the private respondent No.5 to the post of the Guide Lecturer engaging her

in the Arts and Culture Department by executing an agreement dated 16-

12-2011 for engagement on contract basis between the Government of

Manipur represented by the Director of Arts and Culture and the private

respondent No.5 for the period from 16-12-2011 to 29-11-2012. Paragraph

No. 6 of the said agreement reads as under:

"6. The 2nd party shall have no rights to claim or shall not make any claim for regular appointment/ absorption on the basis of his/ her engagement for the implementation of the above work (Name of Scheme/ Work). His/her service shall automatically cease immediately at the end of the contract period unless terminated earlier under Clause 10".

In terms of the said agreement, the private respondent No.5

gave an undertaking that she would not claim any right for regular

appointment on the basis of her engagement as the Guide Lecturer on

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[5]

contract basis and that her engagement would automatically cease at the

end of the contract period.

[3.4] The Director of Arts and Culture, Government of Manipur issued

an order dated 29-11-2016 regularizing the service of the private

respondent No.5 as the Guide Lecturer, Manipur State Museum contrary to

the terms of the said agreement dated 16-12-2011. Thus, the conspiracy

hatched by the private respondent No.5 in collusion with the State

Government officials succeeded allowing her to occupy the public post of

the Guide Lecturer in the Manipur State Museum in the regular capacity. In

view of the settled law that what cannot be done directly, cannot be done

indirectly and therefore, the private respondent No.5 could not have been

permitted to occupy the public post. Such an act being illegal, she cannot

be permitted to legally claim the benefit of her service experience during

the said period.

[3.5] The Manipur University issued an advertisement dated 03-08-

2017 inviting applications from amongst the eligible candidates for filling up

the post of the Curator in the Manipur University and other posts. Both the

petitioner and the private respondent No.5 applied for the said post. The

last date of submission of application form was extended till 29-06-2019

vide advertisement dated 27-05-2019, although the essential qualifications

remained the same. The Manipur University issued a list of eligible

candidates for the post of the Curator short-listing 12 applicants for the

Interview notifying that the date of interview would be intimated soon. All of

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[6]

a sudden, the Manipur University issued an undated corrigendum allegedly

signed on 08-01-2020 notifying that the earlier list of 12 candidates stood

superseded and accordingly, Indra Vats and the private respondent No.5

were shortlisted for the Interview to be held on 23-01-2020 at 01:00 pm.

The aforesaid corrigendum did not mention any reason as to why the

names of 10 applicants including that of the petitioner, had been removed

by the Manipur University.

[4] Being aggrieved by the actions of the respondents, the instant

writ petition has been filed on the inter-alia grounds that since three years

experience in a Museum of National/ Regional importance under the

control of the Central Government/ State Government/ Union Territory is

mandatory, the private respondent No.5‟s selection for Interview is based

on her claim that she had worked as the Guide Lecturer in Manipur State

Museum. Since the private respondent No.5 has been illegally occupying

the public post of the Guide Lecturer against the statutory rules, her claim

of having experience as the Guide Lecturer in Manipur State Museum,

cannot be considered legal. If the Manipur University considered the illegal

claim of the private respondent No.5 while considering the post of the

Curator, the same would amount to giving a seal of approval to the illegal

act committed by the private respondent No.5 in collusion with the State

officials. In order to uphold the rule of law, equity, justice and fair play, the

candidature of the private respondent No.5 is liable to be rejected by the

Manipur University.

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                                        [7]


[5.1]     The stand of the Manipur University as indicted in its affidavit is

that although the petitioner was shortlisted along with 11 candidates for the

Interview, her name, after a proper scrutiny of all the candidates, did not

figure in the list of shortlisted candidates for the Interview for which a

corrigendum dated 08-01-2020 was issued superseding the earlier list of

shortlisted candidates. The petitioner being aware of the fact that she did

not fulfill the requisite qualifications, approached this Court deliberately.

The instant writ petition has been filed by the petitioner without making the

Department of Higher Education, Ministry of Human Resources

Development, Government of India and the UGC as the necessary parties.

After a proper scrutiny being conducted by the Manipur University, only

two candidates were found to be eligible for the Interview. The fact that a

corrigendum was issued, had implied that only two candidates were found

to be eligible and the rest were found to be unqualified for the interview. As

per the essential qualifications provided for the post of the Curator, the

private respondent No.5 is eligible, while the petitioner is not eligible for the

reason that she being a degree of M.A in Archeology, she ought to have a

PG Diploma in Museology from a recognized institution or equivalent.

Therefore, the petitioner has no locus standi for filing the present writ

petition which is liable to be dismissed with exemplary cost.

[5.2] The writ petition is contested by the private respondent No.5 by

way of an affidavit wherein a preliminary objection as regards the

maintainability of the writ petition, has been raised stating that the

petitioner has no locus standi to file it and that it is barred by the principle

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[8]

of "delay and laches". Since the prayers made in the writ petition are not

clear, precise and specific, the instant writ petition is not maintainable in

terms of the order passed by this Court which reads as under:

"At the outset, it has to be pointed out in a writ petition the relief should be clear and precise. The nature of writ should be specific to the relief claimed. If the prayer is confused, resultantly the Court will not be in a position to grant any relief".

A writ of quo-warranto cannot be issued, unless there is a clear

violation of the rules and in other words, a writ of quo-warranto does not

lie, if the violation is not the violation of a statutory provision. A writ of quo-

warranto can be invoked by a person who is qualified to the post and a

candidate for the post. The petitioner does not disclose her position and

the manner in which she is aggrieved. Since the petitioner is challenging

the agreement entered into between the private respondent No.5 and the

Director of Arts and Culture on 16-12-2011 after a gap of more than eight

years, the same is barred by the principle of "delay and laches‟. The

petitioner does not have any locus standi to file the present writ petition, as

she is unable to show as to how she is aggrieved by the agreement dated

16-12-2011 and the Government order dated 29-11-2016. The said

agreement was entered into between them pursuant to a notification dated

01-12-2011 issued by Directorate of Art & Culture inviting applications from

amongst the intending candidates for engagement on contract basis of

nine posts including the post of the Guide Lecturer. Although the validity

and correctness of the corrigendum undated has been questioned, the

name of Indra Vats is not arrayed as a party herein and therefore, the writ

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[9]

petition is liable to be dismissed at the threshold on account of non-joinder

of necessary party. The petitioner does not disclose the manner as to how

a copy of the HSLC certificate issued by the Board of Secondary

Examination is in her possession. So far as the persons employed

temporarily under the State Government are concerned, there is a

relaxation in respect of the upper age limit by the length of the service

under temporary, contractual, ad-hoc or otherwise in the Department vide

notification dated 05-05-1983. The private respondent No.5 was working in

the State from 2003 to 2011 on an honorary basis and from 2011 to 2016

on contract basis. The upper age limit of the private respondent No.5 was

relaxed to the extent permissible at the time of her contract engagement

considering her long service of seven years on honorary basis rendered as

the Guide Lecturer and therefore, there is no question of age-barred. It is

further stated that the private respondent No.5 was appointed on regular

basis as a matter of policy as per the approval of the State Cabinet along

with 15 other contractual staffs of the Department of Arts and Culture. In

terms of the notification dated 10-05-1990 raising the upper age limit for

entry into the Government services, it has been stated that the age limit

prescribed in the recruitment rules shall be deemed to have been

amended accordingly. There is no illegality in the agreement signed

between the private respondent No.5 and the State Government. The

instant writ petition has been filed by the petitioner in order to harass the

respondents and in particular, the private respondent No.5.

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                                     [10]


[5.3]     In the affidavit filed on behalf of the respondent No.1 & 2, it has

been stated that the prayer for issuing a writ of quo warranto cannot be

clubbed with that of other writs and accordingly, the writ petition deserves

to be dismissed. The private respondent No.5 was initially appointed as the

Guide Lecture in Manipur State Museum on contract basis in the year,

2011 on the recommendation of the DPC in its meeting held on

09-12-2011. Considering seven years of service rendered by her, the

proposal for regularization was placed before the State Cabinet which

approved it as a result of which the order dated 29-11-2016 was issued by

the State Government. Since the decision of the State Cabinet has not

been challenged, the regularization order cannot be challenged in view of

a catena of decisions rendered by the Hon‟ble Supreme Court. The

regularization order has been acted upon and therefore, it cannot be

challenged without challenging the policy decision.

[6] In the rejoinder affidavit filed on behalf of the petitioner, it has

been reiterated that no reason was given in the corrigendum for deleting

the names of 10 candidates and accordingly, the petitioner submitted a

representation dated 09-01-2020 requesting the Manipur University for

furnishing information as to why her name was not included in the list of

candidates for the Interview but there was no response from the Manipur

University. The essential qualification for the post of the Curator is a

Master‟s Degree with at least 55% marks of a recognized University in

Museology/ History of Arts/Indian History/Archeology/Anthropology/ Fine

Arts and the preference is given to a candidate holding a Master‟s Degree

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[11]

in Museology. The petitioner has worked for 13 (thirteen) years as an

Assistant Curator in the Manipur University on contract basis and the

essential qualifications of the Assistant Curator and the Curator are more

or less the same. The petitioner being over-aged, is now left completely

incapable of getting any employment in any organization. The petitioner

being disheartened, has resigned from the post of the Assistant Curator

and has moved an application for impleading the new respondents.

[7] From the pleadings as aforesaid, two main issues have

emerged for consideration by this Court-one, whether, in the facts and

circumstances of the present case, the petitioner is entitled for issuance

of a writ of quo warranto and two, whether the corrigendum undated is

legally valid, when it was issued by the Manipur University without

assigning any reason thereof.

[8] Since a preliminary objection as regards the maintainability of

the writ petition, has been raised by the counsel appearing for the private

respondent No.5, this Court proposes to deal with it before going into the

merit of the case. The grounds on which the maintainability of the writ

petition has been questioned, are that a writ of quo-warranto cannot be

issued, unless there is a clear violation of the statutory rules; that it can be

invoked by a person who is qualified to the post and a candidate for the

post; that the challenge to the validity and correctness of the agreement

entered into between the private respondent No.5 and the Director of Arts

and Culture on 16-12-2011 is barred by the principle of "delay and laches‟

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[12]

and that Indra Vats is not arrayed as a party herein, although he/she is a

necessary party because the validity and correctness of the corrigendum

undated has been questioned by the petitioner. The issuance of a writ of

quo warranto is a discretionary remedy by which the authority of a

person to hold a public post can be questioned in the event of the

appointment being violative of statutory provision or holder of the public

office lacks eligibility. In Central Electricity Supply Utility of Odisha

Vs. Dhobei Sahoo & ors., (2014) 1 SCC 161, the Hon‟ble Supreme

Court held:

"21. From the aforesaid exposition of law it is clear s noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority."

In Rajesh Awasthi Vs. Nandlal Jiaswal, (2013) 1 SCC 501, the Hon‟ble Supreme Court that:

"31. From the aforesaid pronouncement, it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person

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[13]

holding the post is authorized to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashimath G. Jalmi Vs. Speaker."

From these two decisions of the Hon‟ble Supreme Court, it is

absolutely clear that the contention of the learned counsel appearing for

the private respondent No.5 has no merit and substance and therefore,

the instant writ petition cannot be said to be not maintainable. In order to

maintain a writ of quo warranto, a third party need not have any personal

interest and any person who is a member of the public and acts

bonafide, can invoke the provisions of Article 226 of the Constitution of

India. The principle of delay and laches will have no application at all as

long as the officer continues to hold the public post/office without any

authority of law.

[9.1] As regards the first issue, it has been submitted by Shri T.

Momo, learned counsel appearing for the petitioner that in terms of the

Recruitment Rules, 1981, the post of the Guide Lecturer is to be filled up

by way of direct recruitment, from amongst the persons possessing the

eligibility criteria, one of which being that the person ought to be 30 years

and below with the upper age being relaxable by 10 years for

Government servants who are appointed on regular basis. The private

respondent No.5, having completed 41 years as on 16-12-22011, was

not eligible for engagement as the Guide Lecturer on contract basis and

since she was holding the post in violation of the statutory rule, a writ

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[14]

quo warranto could be issued in terms of the decision rendered in

Rajesh Awasthi (supra) for declaring it as null and void. The initial

engagement of the private respondent No.5 on contract basis was illegal

and such illegality cannot be perpetuated by granting regularization to

her, for which he has relied upon the decision rendered by the Hon‟ble

Supreme Court in Secretary, State of Karnataka Vs. Uma Devi, (2006)

4 SCC 1. In respect of the second issue, it has been submitted by him

that while issuing the corrigendum, no reason was assigned for deleting

the names of ten candidates including that of the petitioner and

therefore, it being illegal, deserves to be quashed and set aside. The

decision rendered by the Hon‟ble Supreme Court in Chairman &

Managing Director, United Commercial Bank Vs. P.C Kakkar, (2003)

4 SCC 364 has been relied upon in support of his contention.

[9.2] On the other hand, it has been submitted by Shri S. Biswajit

Meitei, learned counsel appearing for the private respondent No.5 that

the private respondent No.5 was engaged as the Guide Lecturer on

honorarium basis from 2003 to 2011, when nobody offered for such

service. In the year, 2011, when the Department notified for engagement

of one Guide Lecturer, only two candidates including the private

respondent No.5 applied for it and the DPC after considering the

services rendered by her, engaged her on contract basis by relaxation of

two years as is provided in the Recruitment Rules, 1981. The service of

the private respondent No.5 was regularized by the State Government as

a policy decision in the year, 2016 which has not been challenged by

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[15]

anyone earlier. The petitioner was aware of it but has chosen not to

challenge it. The engagement of the private respondent No.5 on contract

basis and her regularization by the State Government are being

challenged by the petitioner, only when the petitioner‟s candidature for

the post of the Curator was rejected by the Manipur University which has

shown that her action was malafide. The petitioner has no locus standi to

question it after a long time which will be hit by the principle of laches

and delay. Reliance has been placed by him in the decisions rendered

by the Hon‟ble Supreme Court in Dr. M.S. Mudhol & anr Vs. S.D

Halegkar & ors, (1993) 3 SCC 591; Ramakrisha Kamat & ors Vs.

State of Karnataka & ors, (2003) 3 SCC 374; B. Srinivasa Reddy Vs.

Karnataka Urban Water Supply and Drainage Board Employees

Association, (2006) 11 SCC 731 (II); Mohd. Ashique Vs. State of

Maharastra, (2009) 1 SCC 386; State of Himachal Pradesh Vs.

Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh, (2011)

6 SCC 597 and Dr. Umakant Saran Vs. State of Bihar & ors, (1973) 1

SCC 485. Shri B.P. Sahu, learned Advocate appearing for the Manipur

University has submitted that there is nothing wrong in issuing the

corrigendum for the reason that it has been issued by the Manipur

University after a proper scrutiny and that the petitioner being ineligible

for the post of the Curator as per the rules, has no locus standi to file the

present writ petition. It has been submitted by Shri Th. Sukumar, learned

Government Advocate that since the policy decision taken by the State

Government towards the regularization of the service of the private

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[16]

respondent No.5 has not been challenged, the subsequent orders cannot

be challenged by the petitioner. Her action is malafide, because of which

the writ petition deserves to be dismissed by this Court. He relied upon

the decisions rendered by the Hon‟ble Supreme Court in B. Srnivasa

Reddy Vs. Karnataka Urban Water Supply and Drainage Board

Employees Association, (2006) 11 SCC 731; Amajeet Singh & ors

Vs. Devi Ratan & ors, (2010) 1 SCC 417 and Edukanti Kistamma

(Dead) through LRs & ors Vs. S. Venkata Reddy (dead) through LRs

& ors, (2010) 1 SCC 756.

[10] What is „quo warranto‟? In Stroud‟s Judicial Dictionary, 4th

Edition, quo warranto is a writ that lies against a person who usurps any

franchise, liberty or office. In Halsbury‟s Laws of England, this writ has

been defined as an information in the nature of quo warranto took the

place of obsolete writ of quo warranto which is against a person who

claimed or usurped an office, franchise, or liberty to enquire by what

authority he supported his claim in order that the right to the office or

franchise might be determined. A writ of quo warranto is a writ which lies

against the person who is not entitled to hold an office of public nature and

is only a usurper of the office. It confers jurisdiction upon the Court to

control executive action in making appointment to public offices. The idea

is to protect public from usurpers of public offices. While issuing a writ of

quo warranto, the High Court makes a public declaration. The law relating

to the issuance of quo warranto under Article 226 of the Constitution of

India as laid down by the Hon‟ble Supreme Court, has been examined by

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[17]

this Court in WP(C) No. 985 of 2014, Dr. Thounaojam Surendra Singh

Vs. the Manipur University vide its judgment and order dated 17-11-

2015, the relevant paragraphs of which are given herein below. The law is

well settled and therefore, this Court need not go into the details to delve it.

"[6] Before adverting to and considering the rival contentions and in order to enable this court to decide the issues involved herein, it becomes necessary for this court to examine and refer to the principles laid down by the Hon‟ble Supreme Court as regards the issuance of a writ of quo warranto. In the case of University of Mysore & anr. vs. C.D. Govinda Rao & anr., reported in AIR 1965 SC 491, the Hon‟ble Supreme Court held:

"7. ... Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, 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

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[18]

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 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 the case of B.R. Kapur vs. State of Tamil Nadu & anr., reported in (2001) 7 SCC 231, the Hon‟ble Supreme Court held:

"80.....The writ of „quo warranto‟ is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. State ex inf. McKittrick v. Murphy.

Information in the nature of „quo warranto‟ does not command performance of official functions by any officer to whom it may run, since it is not directed to officer as such, but to person holding office or exercising franchise, and not for purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise functions claimed. State ex inf. Walsh v. Thatcher."

In the case of High Court of Gujarat & anr. vs. Gujarat Kishan Mazdoor Panchayat & ors., reported in (2003) 4 SCC 712 the Hon‟ble Supreme Court held:

"22. The High Court in exercise of its writ jurisdiction in a

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[19]

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, SCC para 74.)

23. 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 case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees Assn. & ors., reported in (2006) 11 SCC 731 (II), the Hon‟ble Supreme Court held:

"49. 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."

In the case of Haribansh Lal vs. Sahodar Prasad Mahto & ors., reported in (2010) 9 SCC 655, the Hon‟ble Supreme Court held that a writ of quo warranto lies only when appointment is contrary to a statutory provision and for issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.

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In the case of Centre for PIL & anr. vs. Union of India & anr., reported in (2011) 4 SCC 1, the Hon‟ble Supreme Court held:

"51. 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 post 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."

64. 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."

In the case of Central Electricity Supply Utility of Udisha vs. Dhobei Chandra Jena & ors., r eported in (2014) 1 SCC 161, the Hon‟ble Supreme Court, after referring to its earlier decisions, has observed that from the aforesaid exposition of law it is clear that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be

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issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority.

[10] As has been stated in the preceding para, the Hon‟ble Supreme Court, after referring to its earlier decisions and in the case of Central Electricity Supply Utility of Udisha vs. Dhobei Chandra Jena & ors. (supra), has observed that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules....."

[11] In the present case, it is not in dispute that the post of the

Guide Lecturer appears to have been created by the State Government,

because of which the Recruitment Rules, 1981 was made by it in

exercise of power conferred by Article 309 of the Constitution laying

down the eligibility criteria. Although no material was placed on record by

either of the parties in regard to the creation of the post of the Guide

Lecturer, the State Government in its affidavit admitted to have

regularized the contractual engagement of the private respondent No.5

as the Guide Lecturer which clearly demonstrates that the post of the

Guide Lecturer had already been created by it. One of the eligibility

criteria as mentioned in column 6 of the Recruitment Rules, 1981, is that

a candidate/person ought to be 30 years and below. The upper Age limit

is relaxable by 10 years for the Government Servants who are appointed

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on regular basis under the Government of Manipur. As per the certificate

of the HSLC Examination, the date of birth of the private respondent No.5

is 05-01-1970. It is not clear as to when she was engaged as the Guide

Lecture on contract basis. But it is quite evident from the agreement

entered into between the State Government and the private respondent

No.5 on 16-12-2011 that the engagement was for the period from 16-12-

2011 to 29-02-2012 which appears to have been extended later till the

year, 2016. The said agreement contains specific provisions clearly

indicating that the private respondent No.5 shall have no right to claim or

shall not make any claim for regular appointment/ absorption on the basis

of the agreement, for which she has given an undertaking to the effect that

she will not claim any right for regular appointment on the basis of her

engagement on contract basis. Considering the service rendered by her as

the Guide Lecturer, the proposal for her regularization was placed before

the State Cabinet which approved it and consequently, the State

Government issued an order dated 29-11-2016 regularizing her service.

[12] On the basis of the above factual matrix, it has been submitted

by the counsel appearing for the petitioner that the private respondent

No.5 is holding the post of the Guide Lecturer contrary to the provisions of

the Recruitment Rules, 1981 for the reason that she was ineligible for

consideration of her engagement as the Guide Lecturer on contract basis

in the year, 2011, as she had become over-aged and therefore, the same

is required to be declared as null and void. In order to combat his

submission, the counsel appearing for the private respondent No.5 has

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drawn the attention of this Court to the Notification dated 05-05-1983,

issued by the Deputy Secretary (DP), Government of Manipur, contending

that the upper age limit will be relaxable to Government servants appointed

under the Government of Manipur to the extent of the period of service put

in the post/ service. The expression "appointed under the Government

of Manipur" is very significant and important. Prior to the year, 2011, the

private respondent No.5 was never appointed as a Government servant,

although she was engaged as the Guide Lecturer on honorary basis for the

period from the year, 2003 to 2011 and therefore, the aforesaid period

cannot be taken into account while computing the upper age limit. Relying

upon the Notification dated 10-05-1990 issued by the Under Secretary

(DP), Government of Manipur, it has been contended by the counsel

appearing for the private respondent No.5 that the upper age limit has

been raised from 30 years to 35 years which is relaxable by 10 years for

the Government servants as provided in column 6 of the Recruitment

Rules, 1981. Therefore, she was eligible for consideration of engagement

as the Guide Lecturer on contract basis, as she was only 41 years of age

in the year, 2011 when she was considered for engagement on contract

basis. His contention is incorrect for the reason that 10 years relaxation as

provided in the Recruitment Rules, 1981 is available to the Government

servants who are appointed on regular basis. As has been observed

hereinabove, the private respondent No.5 was not a Government servant

at all at the time when she was considered for the engagement on contract

basis. Thus, it is quite clear that at the time when she was considered for

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the engagement on contract basis, she was above 30 years and therefore,

she ought not to have been engaged by the State respondents at all and

her candidature ought to have been rejected at the threshold by the DPC.

From the proceedings of the DPC in its meeting held on 09-12-2011, it is

seen that the issue relating to the upper age of the private respondent

No.5 was not considered at all and only on the grounds of her performance

in the interview and the service rendered by her voluntarily, she was

considered and recommended for the engagement on contract basis. But

since this engagement on contract basis is not a regular appointment, a

writ of quo warranto may not lie technically in view of the decision rendered

by the Hon‟ble Supreme Court in B. Srinivasa Reddy (supra) wherein

one of the issues which came up for consideration, was as to whether

the appointment of an incumbent until further orders ousts the jurisdiction

of the High Court in the matter of issuing a writ of quo warranto, even if it

is found that the appointment was not in accordance with the provisions

of law. It has been held by the Hon‟ble Supreme Court that:

"43. Whether a writ of quo warranto lies to challenge an appointment made "until further orders" on the ground that it is not a regular appointment ? Whether the High Court failed to follow the settled law that a writ of quo warranto cannot be issued unless there is a clear violation of law? The order appointing the appellant clearly stated that the appointment is until further orders. The terms and conditions of appointment made it clear that the appointment is temporary and is until further orders. In such a situation, the High Court, in our view, erred in law in issuing a writ of quo warranto the rights under Article 226 which can be enforced only by an aggrieved person

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except in the case where the writ prayed for is for habeas corpus."

The facts of the present case are slightly different from that of

the above case for the reason that in the present case, the initial

engagement of the private respondent No.5 on contract basis was

regularized by the State Government. The initial engagement of the

private respondent No.5 on contract basis and her regularization thereof

are inter-linked to each other. In fact, the regularisation is the

continuation of the engagement on contract basis so as to make her a

regular employee of the State Government. After the private respondent

No.5 being regularized, the corollary issue that arises, is as to whether

the private respondent No.5 is holding the post of the Guide Lecturer in

accordance with law or in violation of the provisions of the Recruitment

Rules, 1981. From the undisputed facts as aforesaid, it is evident that at

the time of engagement as the Guide Lecturer on contract basis, the

private respondent No.5 was already over-aged and she ought not to

have been engaged at all. When the engagement on contract basis was

illegal, the regularization of her contractual engagement cannot be said

to be legal. The stand of the State Government is that since her

contractual engagement was regularized on the basis of a policy

decision taken by it, the same cannot be interfered with by this Court. It

is further the stand of the State Government that without the policy

decision being challenged, the order of her regularization cannot be

challenged by the petitioner. The stand of the State Government that the

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[26]

regularization of the contractual engagement is a matter of policy

decision, is understandable but it could not have been done so contrary

to the provisions of the Recruitment Rules, 1981. A policy decision

cannot be taken by the State Government in violation of the rules and in

particular, the provisions of the Recruitment Rules, 1981 herein,

otherwise it will be rendered as an unreasonable and unfair act being

violative of Article 14 of the Constitution of India. In order to maintain a

writ of quo warranto, the issue is not as to whether the petitioner can

question the regularization of the private respondent No.5 without

questioning the policy decision but the real issue is as to whether the

private respondent No.5 is holding a public post without any authority of

law. As has been observed hereinabove, since the initial engagement of

the private respondent No.5 on contract basis is illegal, the regularization

thereof is also illegal with the result that the holding of the public office

by the private respondent No.5 can be safely held to be without any

authority of law. In other words, since the private respondent No.5 is

holding the post of the Guide Lecturer in violation of the provisions of the

Recruitment Rules, 1981, it is bad in law and is liable to be interfered

with by this Court by issuing a writ of quo warranto declaring it as null

and void.

[13] As regards the second issue, it has been submitted by the

counsel appearing for the petitioner that since no reason has been

assigned while issuing the corrigendum, the same is bad in law. In

support of his contention, he has relied upon the decision rendered by

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[27]

the Hon‟ble Supreme Court in MMRDA Officers Association

Kedarnath Rao Ghorpade Vs. Mumbai Metropolitan Regional

Development Authority and anr, (2005) 2 SCC 235 wherein the

Hon‟ble Supreme Court held:

"5. Even in respect of administrative orders, Lord Denning, MR. in Breen Vs. Amalgamated Engg. Union observed: (ALL ER p.1154h) "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudlley) Ltd. Crabtree, it was observed:

"Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at".

Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial of quasi-judicial performance (Chairman and Managing Director, United Commercial Bank V. P.C Kakkar).

His contention is correct to that extent for the reason that on

perusal of the corrigendum, it is seen that no reason has been assigned

by the Manipur University for removal of the names of 10 candidates

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while issuing the corrigendum. The only stand taken by the Manipur

University is that after a thorough scrutiny, only two candidates were

found to be eligible. It is also the stand of the Manipur University that the

fact that the corrigendum was issued by it, had implied that only two

candidates were found to be eligible. This contention appears to have

indicated that the short-listing of 12 candidates initially had been done

without any application of mind. In fact, if it was a bonafide mistake, it

could be rectified by issuing a corrigendum. There is no issue in this

regard but it is not clear as to whether it was a bonafide mistake or not

because no reason was assigned for having issued the corrigendum. In

other words, it is not clear as to what was the need of issuing the

corrigendum. The Manipur University being an institution and a legal

entity, ought to act fairly and reasonably in the interest of the public. Any

decision taken by it shall be reduced into writing and shall be

accompanied by cogent reasons. One point raised by the counsel

appearing for the private respondent No.5 as regards non-joinder of

necessary party, is relevant. It has been contended by him that since

Indra Vats has not been arrayed as a party in the writ petition, this Court

may not interfere with the corrigendum and that any order passed by this

Court in respect of the corrigendum may have a bearing on the interest

of Indra Vats. His contention appears to be correct to that extent. But the

fact remains that the corrigendum was issued by the Manipur University

without assigning any reason thereof with the result that the names of 10

candidates including that of the petitioner, have been removed, from

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[29]

their being in the list of short-listed candidates, keeping them in the dark

which is impermissible and bad in law. These 10 candidates have a right

to know the reasons as to why their names have been removed after

their names being shown in the list of short-listed candidates. It is alright,

if they were found to be ineligible for the interview but it must be made

known to them.

[14] In view of the above and for the reasons stated hereinabove, the

instant writ petition is allowed partly with the following directions:

(a) It is declared that the holding of the post of the Guide Lecturer

by the private respondent No.5, at Manipur State Museum,

Department of Arts & Culture, Government of Manipur, in

violation of the provisions of the Recruitment Rules, 1981 vide

Government order dated 29-11-2016 after her contractual

engagement being regularized, is illegal, null and void and

consequently, the Government order dated 29-11-2016 stands

quashed;

(b) The Manipur University is directed to recall/ cancel the

corrigendum undated but is stated to have been signed on 08-

01-2020 notifying that the list of 12 short-listed candidates

stood superseded and that only Indra Vats and the private

respondent No.5 were short-listed for the interview to be held

on 23-01-2020 and to issue a fresh list of short-listed

candidates within a period three weeks from the date of receipt

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of a copy of this judgment and order. In the event of any

candidate out of a total of 12 candidates short-listed earlier,

being found to be ineligible for the interview, the reason

thereof ought to be made known to him/ her.