Court can scrutinise only whether statutory rules have been violated

Consideration of suitability or eligibility of a candidate for a post is within the domain of the appointing authority and the only thing that court can scrutinise is whether the appointment is contrary to statutory provisions/rules.

Giving this ruling, a Bench of Justices Anil R. Dave and Dipak Misra said if the candidate had the qualifications and fulfilled the requirements of the post, quo warranto should not be entertained by High Courts on public interest writ petitions. Writing the judgment, Justice Misra said “It is [as] clear as day that the jurisdiction of the High Court while issuing a writ of quo warranto [questioning under what authority a person is appointed to a post] is a limited one and can be issued only when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules.” The Bench said: “PIL was initially evolved as a tool to take care of the fundamental rights under Article 21 of the Constitution of the marginalised sections, who because of poverty and illiteracy could not approach the court… It was evolved to benefit the have-nots and the handicapped for protection of their basic human rights and to see that authorities carry out their constitutional obligations towards the marginalised sections…. [But] it has also come to the notice of this court that some persons, who describe themselves as pro bono publico , have approached the court challenging grant of promotion, fixation of seniority, etc. in respect of third parties.”

The Bench, quoting earlier decisions, said PIL petitions should not be used to settle personal scores.

In the instant case, the Central Electricity Supply Utility of Odisha and Bijaya Chandra Jena were aggrieved over a Orissa High Court order quashing his appointment as CEO of CESU. The High Court also ordered recovery of his salary. Allowing their appeal and setting aside the order, the Bench said: “Judgment can be erroneous but when there is a direction for recovery of the honorarium, it indubitably creates a dent in the honour of a person… While exercising the power for issue of a writ of quo warranto , the court only makes a declaration that the person holding the public office is a usurper and not eligible to hold the post and after the declaration is made he ceases to hold the office. [But] till the declaration is made, the incumbent renders service and… cannot be deprived of his salary. Denial of pay for the service rendered is tantamount to forced labour which is impermissible…”

Recovery of salary “would amount to deprivation of payment while the incumbent was holding the post and had worked,” the Bench said.

  • PIL is meant for benefiting marginalised sections, not a tool to settle personal scores

  • Denial of pay to incumbent holding office is akin to forced labour