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CASE NO.: Appeal (civil)  3719 of 2006

PETITIONER: B. Srinivasa Reddy

RESPONDENT: Karnataka Urban Water Supply & Drainage Board Employees’ Association & Others

DATE OF JUDGMENT: 28/08/2006

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 9393/2006) WITH  CIVIL APPEAL NO.      3722         OF 2006 Arising out of SLP (C) No. 10388/2006)

Dr. AR. Lakshmanan, J.

       Leave granted in both the special leave petitions.

These appeals have raised substantial questions of law  involving interpretation of certain provisions of the Karnataka  Urban Water Supply and Drainage Board Act, 1973 (for short  "the Act") and the Rules made thereunder and also the  principles of law governing the Writ of Quo Warranto and the  power of the Government to make a contractual appointment  under Section 4(2) of the Act.  

Civil Appeal No._____________ of 2006 (Arising out of SLP (C) No. 9393 of 2006)

This appeal was filed by Mr. B. Srinivasa Reddy  (hereinafter called Mr. Reddy) seeking leave to appeal against  the final judgment and order dated 04.04.2006 passed by the  High Court of Karnataka at Bangalore in Writ Appeal No. 86 of  2006.  By the impugned order, the High Court dismissed the  writ appeal filed by the appellant-herein against the order  dated 10.01.2006 passed by a learned Judge of the said Court  in Writ Petition No. 9852 of 2004 and has declared that the  appellant is not entitled to hold the post of Managing Director  of the Karnataka Urban Water Supply & Drainage Board  (hereinafter called ’the Board’) (respondent No.4).

Civil Appeal No.___________ of 2006 (Arising out of SLP (C) No. 10388 of 2006)

       The above appeal was filed by the Government of  Karnataka against the very same judgment passed by the  Division Bench of the High Court in Writ Appeal No. 254 of  2006 whereby the Division Bench dismissed the writ appeal  filed by the State.  FACTS:         The Karnataka Urban Water Supply & Drainage Board  Act, 1973  was enacted to provide for the establishment of  water supply and drainage Board and the regulation and  development of drinking water and drainage facilities in the  urban areas in the State of Karnataka.  The Board, with the

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previous sanction of the Government of Karnataka, framed the  Karnataka Urban Water Supply & Drainage Board Services  (Cadre and Recruitment) Regulations, 1985.  An amendment  to serial No. 1 of the Schedule to the Regulations was  introduced by the Board whereby even the Chief Engineers of  the Board were made eligible for appointment to the post of  Managing Director.  Respondent No.1 is the Karnataka Urban  Water Supply & Drainage Board Employees’ Association  represented by its President Halakatte.  He is also respondent  No.2 in his capacity as President of the Employees’  Association.  The State of Karnataka and the Board are also  the contesting respondents 3 and 4 in this appeal.   Respondent No.1 (hereinafter called the Employees’  Association) filed writ petition No. 44001 of 1995 in the High  Court of Karnataka challenging the appointment of one S.  Ramamurthy as the Managing Director of the Board on the  ground that by virtue of Section 7(1)(d) of the Act, the said  Ramamurthy, being an officer/servant (Chief Engineer earlier)  of the Board, could not have been appointed as the Managing  Director of the Board.   The Government of Karnataka, vide notification No.  UDD/14/UB/91 dated 28.04.1997, nominated the appellant  who was a Chief Engineer of the Board as one of the Directors  of the Board "with immediate effect and until further orders".   The Board, after due approval of the State, vide G.O. No. HUD  15 UWE 93 dated 11.12.1997, amended the method of  recruitment for the post of Managing Director of the Board in  serial No. 1 of the Schedule to the Regulations to the effect  that a Managing Director can be selected only from amongst  the Chief Engineers of the Board.  Other criterias were  removed.   On 28.01.1998, the Government of Karnataka, through  the Urban Development Department, vide Notification No.  UDD 4 UWE 98 dated 28.01.1998, pursuant to Section 53 of  the Act read with Rule 27 of and serial No. 1 of the Schedule  to the Regulations, promoted the appellant on officiating basis  and appointed him as the Managing Director of the Board  w.e.f. 31.01.1998 afternoon and "until further orders" since S.  Ramamurthy, the then Managing Director of the Board took  voluntary retirement.  The Employees’ Union filed an amended version of the  writ petition before the High Court also challenging the above- mentioned amendment to the Regulation which relates to  making of a provision of appointing the Chief Engineer of the  Board as its Managing Director.  The writ petition was further  amended to include the challenge to the  promotion/appointment of the appellant as the Managing  Director of the Board pursuant to the said amendment.  

The learned Single Judge of the High Court allowed the  writ petition on 12.04.2002 and held: a)      that the impugned amendment of the  Regulations was illegal since the same was  contrary to Section 7(1)(d) of the Act; b)      that the appointment of the appellant is illegal  since, being a Chief Engineer of the Board, he  was disqualified under Section 7(1)(d) of the Act  and hence his appointment was contrary to the  provisions of Sections 7(1)(d), 68 and 69 of the  Act, Rules and Regulations; c)      that the appointment was further held to be  illegal since it was also contrary to Regulation 27  of the Regulations as the appointment was not

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restricted to one year but until further orders.

The High Court quashed the appointment orders and  directed the State to take immediate steps to appoint the  Managing Director of the Board. Writ appeals were filed by the Board, the Government  and the appellant \026 Mr. Reddy. The Division Bench of the High Court in Writ Appeal No.  2877-78 of 2002, issued notice and stayed the order of the  learned Single Judge for a period of two months which was  later continued.  By virtue of this order, the appellant  continued to enjoy the post of Managing Director.  The appellant retired as Managing Director of the Board  on 31.01.2004.  The Relieving Order reads thus:

"Sri B. Srinivasa Reddy, Managing Director, KUWS&DB  who retired from service on attaining superannuation as  31-01-2004 is relieved from his duties on the afternoon  of 31-01-2004."

He was re-appointed as Managing Director of the Board  until further orders on 01.02.2004.  Writ Petition No. 9852 of  2004 was filed for a Writ of Certiorari, Writ of Quo Warranto  and any other writ, order or direction under Article 226.   Learned Single Judge allowed the Writ Petition No. 9852 of  2004.  Writ Appeal No. 86 of  2006 was admitted and the  operation of the learned Single Judge’s order was stayed on  16.01.2006 and Writ Appeal No. 86 of 2006 was finally  dismissed on 04.02.2006.  The Court also imposed costs of Rs.10,000/- against the  appellant and also imposed cost against the State Government  and respondent No.4 at Rs.5,000/- each separately.   It is pertinent to notice that in 2002, a complaint was  made to the Lokayukta against the Chairman and the  appellant - Mr. Reddy by Mr. Halakatte, President of the  Employees’ Association (R2 herein).  By order dated  13.08.2003 Lokayukta held that the allegation against the  appellant is baseless.  Lokayukta after absolving the appellant  of false allegations directed action against the then FA & CAO  of the Board.  The Lokayukta closed the complaint on  01.02.2005 after Government has taken action against FA &  CAO.  We heard Mr. P.P. Rao, learned senior counsel assisted  by Mr. P.S. Rajagopal, learned counsel for the appellant and  Mr. Sanjay R. Hegde for the State of Karnataka and Mr. Raju  Ramachandran, learned senior counsel assisted by Mr.  Devashish Baruka and Mrs. Hansa Baruka, learned counsel  for the contesting respondent \026 the Employees’ Union.  Mr. P.P. Rao, learned senior counsel made elaborate  submissions on facts and on law with reference to the  pleadings, annexures, judgments and the relevant provisions  of the Act.  He made submissions on the following issues:- 1.      Writ petition as framed not maintainable at the  instance of an unregistered Trade Union; 2.      Locus of the writ petitioners \026 Employees’ Union;     3.      No Writ of Quo Warranto unless there is violations of  statutory provisions in making appointment; 4.      No violation of Section 4(2) and or Rule 3 of Rules as  held by the High Court;  5.      Government has always the power to make contractual  appointment until further orders and finding to the  contrary is ex facie erroneous; 6.      High Courts reliance on official Memorandum dated  23.12.1994 is erroneous;

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7.      Pleasure of the Government under Section 6(1) of the  Act and Rule 3 of the Rules which envisages the  qualifications; 8.      Until further orders \026 pleasure of the Government and  discretion; 9.      Legal malice \026 finding is unsustainable; 10.     Writ petition by R1, R2 was motivated as R1 had  lodged a false complaint to the Lokayukta against the  appellant Reddy which was found to be baseless. The above submissions will be dealt with in extenso in  paragraphs infra. Mr. Sanjay R. Hegde adopted the arguments of Mr. P.P.  Rao.  He invited our attention to Article 310(2) of the  Constitution of India.      Article 310 deals with tenure of office of persons serving  the Union or a State.  Under the pleasure doctrine, a servant  of the Government holds office during the pleasure of the  sovereign.  But in order to protect civil servant against the  political interference Article 311 introduces certain safeguards.   Moreover, a specific contract can override the doctrine of  pleasure as reported in Parshotam Lal Dhingra vs. Union of  India, AIR 1958 SC 36.  Mr. Raju Ramachandran in his usual fairness fairly  conceded that he is not questioning the State Government’s  power in appointing persons on contract basis.  According to  him, the entire case is not based on end of lack of power but  an abuse and mis-use of that power by the State Government.   According to him, non-specification of a period of appointment  amounts to abuse of power, mis-use of power and illegal  malafides and that power is not used for the purpose for which  it is vested in the Government.  According to him, form of the  writ should not be a matter which should inhibit the Court.   This argument was advanced in regard to the prayer made in  the writ petition on the maintainability of the writ petition.   Mr. Raju Ramachandran submitted though the employees  association was not a registered body on the date of filing of  the writ petition, the association was registered again as a  trade union under the Trade Unions Act on 20.01.2005 and  that though the employees union was not a registered trade  union but was a recognized union by all and, therefore, the  association is entitled to maintain the writ petition as framed.   He also made elaborate submissions with reference to the  records, annexures and the judgments and of the Government  orders.      Mr. Raju Ramachandran also submitted that the civil  appeal has now become infructuous in view of the  developments which have taken place subsequent to the  orders of this Court dated 08.05.2006 by which notice was  issued to the respondents in view of the fact that the  Government of Karnataka has now appointed one Mr.  P.B.Ramamurthy as the Managing Director of the Board with  immediate effect by an order contained in the notification  dated 17.05.2006 and pursuant to the above order the  appellant Mr.Reddy has already made over the charge of the  office of Managing Director of the Board to the said P.B.  Ramamurthy who had received charge of the said office on  19.05.2006.  It was submitted that the appellant has no  substantive right left qua the post of Managing Director of the  Board since even as per his appointment order dated  31.01.2004 he is to have charge only "until further orders".  In  view of the above subsequent developments, learned counsel  for the Union submitted that the present appeal has become  infructuous.  According to Mr. Raju Ramachandran, though the power  to appoint is vested with the State Government under Section

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4(2) of the Act the same is not unfettered or uncontrolled.  It  cannot be based on mere ipsi dixit of the Government the  discretion of the Government cannot be said to be without any  bounds.  If the High Court on the facts of a particular case  finds that such discretion has been mis-used, the High Court  would be within its power to check such actions of the  Government.   According to him, a Writ of Quo Warranto would lie to  challenge an appointment made until further orders on the  ground that it is not a regular appointment.  Merely because  the appointment is for until further orders would oust the  jurisdiction of the High Court to issue a Writ of Quo Warranto  when it is found that the very appointment was illegal and not  warranted within the provision of law.  It is submitted that the words \026 pleasure of the  Government found in Section 6(1) of the Act cannot be given a  meaning so as to grant arbitrary and un-fettered powers to the  Government with respect to appointment of a Managing  Director to the Board.  It is submitted that the words cannot  mean as absolute and unconditional will of the Government,  for that would go counter to the constitutional scheme and to  the rule of law itself.  In the instant case, under the guise of temporary  appointment made until further orders, the Government in  fact by misusing its discretionary powers ensured that the  appellant’s appointment continues without any limit as to  tenure or term.  It is submitted the High Court rightly passed  the impugned order since the appointment was in violation of  the provisions of law.  It is submitted that no appointment to a  public post can be made without a specific tenure.  According  to Mr. Raju Ramachandran, the official memorandum dated  23.12.1994 squarely applies to the Board in question and that  the said memorandum in express terms provide that  procedure contained therein shall apply, inter alia, to Boards  which are subordinate to or under the control of the  Government.  It is thus submitted that the Board is covered  with the said memorandum. It is further contended that Section 7(1) (d) of the Act  read with the above official memorandum would make it clear  that retired employees cannot be appointed the post of  Managing Director of the Board.  The purpose of Section  7(1)(d) and the office memorandum dated 23.12.1994 has to  be looked into while deciding the legality of the appointment of  the appellant to the post of Managing Director of the Board.   According to Mr. Raju Ramachandran it has nowhere come on  record that the appellant possessed such exceptional and high  qualifications as to warrant the Government to deviate from its  own policy and appointed the appellant.  In fact any  experience gained by the appellant during his tenure as the  Managing Director prior to his retirement is of no consequence  since such appointment was held to be illegal and invalid by  the High Court.  No exceptional circumstances has been  shown that the appointment of the appellant to the post of  Managing Director in deviation to regular mode of  appointment of IAS officers on deputation.   In regard to the maintainability of the writ petition Mr.  Raju Ramachandran submitted that the High Court did not  rely upon the status of the writ petitioners as registered trade  union but rather accepted their locus standi as employees of  the Board and their right to form trade unions associations  though unregistered and on such basis permitted them to  challenge the appointment in writ proceedings.  According to  him, the unregistered unions, in the eyes of law can contend  that it has to come and knock the doors of this Court seeking  justice by pointing out the illegalities of the State Government

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in appointing the appellant as Managing Director of a  Statutory Board wherein public interest is involved.  The  purpose, according to him, is to espouse the cause of the  workers.  Therefore, the writ petitioners were employees of the  Board and cannot be considered as wayfarers and that the  employees approached the High Court in public interest and  have been attempting to dissuade the Government from  granting favour to the appellant herein by appointing him at  the post of Managing Director of the Board for long.   We have carefully considered the rival submissions with  reference to the entire records.   1)      Locus of the unregistered Trade union = Maintainability:         Respondent No. 1 association was a recognized  association.  It is registered again as a trade union on  20.01.2005 i.e. before the pronouncement of judgment of the  learned single judge.  Respondent No.2 Halakatte, who is the  President of Respondent No.1 in his individual capacity has  also challenged the appointment.  In Quo Warranto  proceedings any concerned person can file a writ petition.   While dealing with the locus, the High Court has relied upon  the right of persons to form association and consequently to  file a Writ in Quo Warranto proceedings.          In fact, Mr. Rao distinguished the cases referred to by the  respondents on the issue of non-registered associations having  no locus to file writ petitions as distinguishable and  inapplicable in the present facts and circumstances.  In Mahinder Kumar Gupta and Others vs. Union of  India, Ministry of Petroleum and Natural Gas, (1995) 1  SCC 85, this Court held that the writ petition filed by an  Association is not maintainable as Association has no  fundamental right under Article 32 of the Constitution of  India.          In Coinpar and Another vs. General Manager,  Telecom District and Others, (2004) 13 SCC 772, the  appellant before this Court was an Association which claims  working in public interest preferred an appeal against the  judgment of the High Court with an application for permission  to file special leave petition.  The said permission was granted.   After the matter was heard, this Court found that the  appellant was neither party in the case before the Forum nor  before the High Court.  It was also not shown before this Court  in what manner the appellant was aggrieved by the judgment  of the High Court.  This Court held that the appellant has no  locus standi and cannot be permitted to challenge the  judgment of the High Court.  Our attention was also drawn to the proceedings of the  Deputy Registrar of the Trade Union Dharwad (Division) Hubli  dated 02.11.1992 Government of Karnataka (Department of  Labour).  The said proceedings reads thus:- "Subject:       Cancellation of registration of Trade Unions,  under Trade Union Act, 1926. Reference:      This office notice No. TUA/AR.1991 dated  30.7.1992 *****

WHEREAS a notice was issued from this office to the  General Secretary/Secretary, Karnataka Urban Water  Supply & Drainage Board Employees Association, Hubli,  cause as to why the registration of trade union should  not be cancelled owing to the violation of the provisions  of section 28 of the Trade Union Act, 1925, by not  submitting the Annual Return of the union for the year  ending 31st December, 1991.  

AND whereas the union was not complied with the

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above requirements, even after notice, contravened the  above provisions of law.  Therefore in exercise of my  powers conferred under Section 10(b) of the Act, I  hereby order that the Registration of the Water Supply  & Drainage Board Employees Association, Hubli  Bearing Registration No. 544/85 be cancelled with effect  from the date of this order.  

The General Secretary is hereby directed to surrender  the certificate of registration."  

In the instant case, the appellant was appointed w.e.f.  01.02.2004.  The Employees Union filed the writ petition on  08.03.2004.  On the said date, the respondent-Union was not  a registered trade union and the Certificate of Registration of  the Trade Union in Form ’C’ was issued by the Government of  Karnataka, Department of Labour only on 20.01.2005 which  reads thus:- "It is hereby certified that the  Karnataka Nagar Niru Sarbaraju Mattu Olacharandi  Noukarar Sangha, Dharwa.  has been registered under the Indian Trade Unions Act,  1926.  Dated: 20th January 2005

                                               Sd/ Deputy Registrar of Trade Unions Assistant Labour Commissioner, Dharwad Division, Hubli." In Parents Teachers Association and Others vs.  Chairman, Kendriya Vidyalaya Sangathan and Others,  AIR 2001 Rajasthan 35, speaking for the Bench, Chief Justice  Dr. AR.Lakshmanan, in paras 12 and 13 observed as under:-  "(12). The appellant-petitioners have not placed before  this Court any document to show that the Parents- Teachers Association is a registered and recognised  association. The writ petition has been allegedly filed in  public interest and the alleged large interest of the  students. It is evident that the so-called Parents-  Teachers Association is an unregistered and  unrecognised association and, therefore, in our view,  has no fundamental right to approach this Court under  Article 226 of the Constitution. This point has been  concluded by the decision of the Apex Court in the case  of Mahendra Kumar Gupta (supra) and by the decision  of Full Bench of this Court in the case of RSEB  Accountant’s Association (supra). A reply to the  preliminary objection raised by the respondents was  also made by the appellants. It is stated that the  Parents-Teachers Association has been recognised by  the KVS and that the Principal is the Vice Chairman of  the said Association and hence, the Association is  competent to file the writ petition on behalf of the  students. In our view, the above reason cannot be  considered as a valid reason for maintaining the writ  petition. It is not in dispute that the Association is not a  registered body and recognised Association. Thus, after  examining this point of law in detail and placing  reliance on various judgments delivered by the Apex  Court from time to time, the Full Bench of this Court in  the case of RSEB Accountant’s Association (supra) held  as under:- "It may also be observed that an unregistered  association has no fundamental right to approach  this Court under Art. 226 of the Constitution and

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this point is concluded by the decision in the case  of Shri Maninder Kumar Gupta vs. Union of India,  Ministry of Petroleum and Natural Gas; JT 1995  (1) SC 11. A decision in the case of Akhil  Bharatiya Soshit Karamchari Sangh vs. Union of  India and others AIR 1981 SC 298 was relied  where the non-registered Association was held to  apply under Art. 32 of the Constitution. We may  observe that there had been number of the  instances of public interest litigation where large  body of persons is having the grievance against  inaction of the State. Even letters have been  considered to be a writ petition but all these are  the matters where large section of public is  affected and the personal interest of any person or  a smaller section as in the present case, is not  involved. Even in the case of People’s Union for  Democratic Rights vs. Union of India; AIR 1982 SC  1473 when the question of locus standi was  considered, the Hon’ble Supreme Court had taken  into consideration the poverty, illiteracy and the  ignorance obstructing and impeding accessibility  of the judicial process and on that ground it was  considered that the writ petition can be filed. In  D.S. Nakara & Others vs. Union of India AIR 1983  SC 130 the old pensioners individually were  unable to undertake journey through labyrinths of  costly and protracted legal judicial process for  allowing to espouse their cause. In case of S.P.  Gupta and Others. vs. President of India; (AIR  1982 SC 149 poverty, helplessness and disability  or social or economic disadvantaged, position was  considered a sufficient ground for maintaining the  writ petition. There had been other decisions of  the Apex Court as well and principles which  emerge from all of them are as under:- (a) That the members of the said association should  have sufficient strength so as to come in the category of  a large sect of public. (b) That the members should be identifiable. (c) That the members must be of the category of  poor/illiterate/helpless or disabled. (d) That the individual member must not be capable of  filing a writ petition. (e) That the entire body of the members must authorise  the association to protect their legal rights. (f) That such an association must have its own  Constitution, and (g) That there must be authority to file a writ petition on  behalf of all the members." (13). In the instant case, none of the grounds mentioned  above in (a) to (g) have been satisfied by the present  appellants to maintain the writ petition. Since the above  conditions are not fulfilled such an unregistered  association cannot file writ petition in respect of the  legal rights of the said association for the alleged breach  of fundamental right as the association itself has no  fundamental right of its own."

       We shall now advert to the provisions of the Industrial  Disputes Act with reference to the registration of Trade  Unions.  Section 2(q)(q) defines trade union which means a  trade union registered under the Trade Unions Act, 1926 (16  of 1926).  Section 36 of the Industrial Disputes Act, 1947 says  that the workman who is a party to dispute shall be entitled to

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be represented in any proceedings under this Act by any  member of the executive or other office bearer of a registered  trade union of which he is a member or by any member of the  executive or other office bearer of a federation of trade unions  to which the trade unions referred to in clause A is affiliated.   The writ petitioner union made a false averment that it is a  registered trade union that itself, in our opinion, is a ground to  dismiss the writ petition.  The writ petitioner has made an  averment to the following effect in its writ petition which is  also reflected in the order passed by the High Court in the writ  petition which runs thus: "The petitioner is a registered Trade Union of employees  of 2nd respondent Karnataka Urban Water Supply &  Drainage Board (hereinafter referred to as ’the Board’)  constituted under the Karnataka Urban Water Supply  and Drainage Board Act, 1973 (hereinafter referred to as  ’the Act’)." In the writ petition filed by respondent Nos. 1 and 2 their  locus standi to challenge the appointment of the appellant was  asserted in the following words:- "The petitioner Association is Trade Union registered  under the Trade Unions Act, 1926.  The petitioner is the  only registered trade union existing in the 2nd  respondent-Board.  The Board has held several  negotiations with the petitioner Union in regard to the  service conditions of the employees of the 2nd  respondent-Board since its formation in the year 1986.   The Board has entered into several settlements with the  petitioner Union with regard to their service conditions.   The petitioner which is a recognized trade union is  entitled to agitate the matter with regard to the  appointment of the 3rd respondent to the Board.  The  petitioner is concerned about the functioning of the 2nd  respondent-Board, and as such is entitled to question  the appointment of the 3rd respondent as Managing  Director on contract basis.  Hence, the petitioner has  locus standi to file this Writ Petition."                                           (Emphasis supplied) These averments were established to be false.  The  registration of the first respondent under the Trade Unions Act  had been cancelled as early as on 02.11.1992.  It is not a  registered and recognized union.  In fact, it was pointed out  that recognized association is one Karnataka Urban Water  Supply and Drainage Board Officers and Employees  Association and the first respondent does not have even a  handful of members.  The fact of cancellation of registration of  the first respondent came to the knowledge of the appellant  long after the disposal of the earlier writ petition No. 44001 of  1995 wherein the Court had given a finding that the first  respondent has locus standi to challenge the appointment of  the appellant to the post of Managing Director of the Board  solely on the ground that it is a registered Trade Union.  In our  opinion, the High Court gravely erred in refusing to examine  the question of locus standi on the ground that it is decided in  the earlier writ petition which operates as res judicata and that  the petitioners even otherwise have locus standi.  Chapter-III  of the Trade Unions Act, 1926 sets out rights and liabilities of  the registered Trade Unions.  Under the said enactment, an  unregistered trade union or a trade union whose registration  has been cancelled has no manner of right whatsoever even  the rights available under the I.D. Act have been limited only  to those trade unions which are registered under the Trade  Unions Act 1926 by insertion of clause 2 (q)(q) in the I.D. Act  w.e.f. 21.08.1984 defining a trade union to mean a trade  union registered under the Trade Unions Act. 1926.

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The High Court, in our opinion, miserably failed and  gravely erred in holding that the respondent Nos. 1 and 2 have  locus standi to question the appointment of the appellant in  the light of the change of law that has been brought about by  insertion of Section 2(q)(q) of the I.D. Act and having regard to  the provisions of Chapter-III of the Trade Unions Act, 1926.   This Court, in many judgments, held that the Union has locus  standi in the facts and circumstances of that case, however,  cautioning that if a citizen is no more than a wayfarer or  officious intervener without any interest or concern that what  belongs to anyone of the 660 million people of this country.   Fertilizer Corporation Kamgar Union (Regd.) Sindri and  Others vs. Union of India and Others, (1981) 1 SCC 568.  The doors of the Court will not ajar for him. In the instant case, the employees association  approached the High Court with unclean hands.  The  employees who approaches the Court for such relief must  come with frank and full dis-closure of facts.  If they failed to  do so and suppress material facts their application is liable to  be dismissed.  The Constitution Bench of this Court in Naraindas vs.  Government of Madhya Pradesh and Others, AIR 1974 SC  1252 held that if a wrong or mis-leading statement is  deliberately and wilfully made by a party to a litigation with a  view to obtain a favourable order, it would prejudice or  interfere with the due course of judicial proceeding and thus  amount to contempt of court.   It is thus crystal clear that the Employees’ Union have  approached this Court by suppressing the material facts and  has snatched an order on the basis of wrong averments when  the employees union has no locus standi to maintain the writ  petition on the date relevant in question.  Courts cannot grant  any relief to a person who comes to the Court with unclean  hands and with mala fide intention/motive.  The writ petition  filed by the employees association is liable to be thrown out on  this single factor.  Though it is eminently a fit case for  awarding exemplary costs, considering the employees financial  aspect and taking a lenient view of the matter, we are not  ordering any costs.  2) Writ of Quo Warranto: 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 can be enforced only by an aggrieved person  except in the case where the writ prayed for is for Habeas  Corpus or Quo Warranto.         In the instant case, the power to appoint the Managing  Director of the Board is vested in the Board under 4(2) of the  Act.  Neither the Act nor the Rule prescribed any mode of  appointment or tenure of appointment.  When the mode of  appointment, tenure of appointment have been left to the  discretion of the Government by the Act and the Rules and the  Act makes it clear that the Managing Director shall hold office  at the pleasure of the Government the High Court could not  have fettered the discretion of the Government by holding that  Section 4(2) of the Act does not expressly give the power to the  State Government to make ad hoc or contract appointment  when the Act and the statutory rules have not prescribed any

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definite term and any particular mode, the High Court could  not have read into the statute a restriction or prohibition that  is not expressly prohibited by the Act and the Rules.  It is well  settled that when the statute does not lay down the method of  appointment or term of appointment and when the Act  specifies that the appointment is one of sure tenure, the  Appointing Authority who has power to appoint has absolute  discretion in the matter and it cannot be said that discretion  to appoint does not include power to appoint on contract  basis.  An appointment which is temporary remains temporary  and does not become a permanent with passage of time.  The  finding records by the learned Single Judge that the  appointment is bad for the reason that the appointment which  was made on temporary basis has continued for nearly 2 years  is wholly contrary to law particularly when the Act and the  Rule do not stipulate maximum period of appointment.  The  High Court, in our view, gravely erred in issuing a Writ of Quo  Warranto when there is no clear violation of law in the  appointment of the appellant.         The official memorandum dated 23.12.1994 on a plain  reading of it applies only to Government servants.  It has no  manner of the application to the employees or servants of the  statutory boards.  The appellant is not a retired government  servant.  His appointment as Managing Director of the Board  is not a post in Government service.  The High Court has erred  in law in applying the said official memorandum to the  appointment of the appellant which is governed only by the  Act and the Rules, even otherwise the High Court has failed to  appreciate that the official memorandum running counter to  the statutory provisions are ineffective and at any event  cannot be enforced in a quo warranto proceedings.          The appellant joined the services of the State in the  public health engineering segment of its Power Works  Department in the year 1967.  From the time, the Karnataka  Urban Water Supply & Drainage Board was established in the  year 1975, he has been working in the Board having initially  been appointed to its services as Assistant Engineer,  thereafter, absorbed in its services and by his consistently  good performance and unblemished record reached the post of  Chief Engineer of the Board.  He has apart from about 34  years of experience in development, establishment,  maintenance and management of drinking water and drainage  facilities in the urban areas has undergone several training  programmes abroad in planning, appraisal implementation of  water and sanitation projects and management development  programme for senior public health engineers.          Section 4(2) of the Act, 1973 mandates that the Managing  Director shall possess the prescribed qualification and he shall  be appointed by the Government.  Rule 3 of the Rules, 1974  prescribes the qualification for appointment of Managing  Director in these words: "The Managing Director shall be a person having  experience in administration and capacity commercial  matters."   

There was not even a pleading that the appellant does not  have experience in administration and capacity in commercial  matters.  The appointment of the appellant has been made by  the Government in exercise of powers conferred on it by  Section 4(2) of the Act.  The High Court does not dispute the  power of the Government to make the appointment.  Mr. Raju  Ramachandran, learned senior counsel for the Union does not  dispute that the power of the Government to make contractual  appointment.  A perusal of the judgment of the High Court  would only go to show that the High Court did not record any

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finding that the appellant does not possess the qualification  prescribed by the acts and rules.  The disqualification for  appointment as a Director of the Board are set out in Section 7  of the Act.  The only disqualification that the appellant  suffered was under Section 7(1)(d) of the Act.  He being an  employee of the Board and this disqualification disappeared on  31.01.2004 when the appellant retired from service of the  Board on superannuation.  The High Court having regard to  the technical nature of quo warranto proceedings could not  have ousted the appellant from the office on the ground of an  inapplicable qualification prescribed by administrative  instruction dated 23.12.1994 which had no manner of  application for appointment to the post of Managing Director  of the Board.          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.          The official memorandum dated 23.12.1994 deals with  re-appointment of retired government servants and granting  extension of service to retired government servants.  As  already stated, the appellant is not a government servant nor a  retired government servant.  The official memorandum is an  administrative instruction which is contrary to the provisions  of the Act and statutory Rules neither the Act nor the Rules  prescribe any age of retirement for the Managing Director of  the Board.  On the other hand, having regard to the dis- qualification prescribed by Section 7(1)(d) of the Act to the  effect that an officer or servant of the Board cannot be  appointed as Managing Director.  The High Court could not  have read an additional dis-qualification that a retired officer  or a servant of the Board also cannot be appointed as  Managing Director of the Board.  The memorandum dated  23.12.1994 is no manner of application to the appointment in  question and it is even otherwise ineffective inasmuch as it is  an administrative instruction which is contrary to the  provisions of the Act and the Rules.  The High Court, in our  opinion, erred in ousting the appellant from his service by  issue of a Quo Warranto on the ground that the appellant  having retired from this service of the Board on 31.01.2004  suffered dis-qualification under the said memorandum by a  reading of the Act and the Rules the appellant acquired  qualification for appointment on 31.01.2004 on his retirement  and the view of the High Court that the appellant is dis- qualified on 31.01.2004 on his retirement from service of the  Board is not only contrary to the Act and the Rules is also  plainly opposed to the language of the memorandum itself.   Even otherwise, no Writ of Quo Warranto could have been  issued on the ground that even though the appointment is  contrary to any statutory rule it is contrary to the  administrative instruction which the High Court holds as  disclosed the policy of the Government.  There is no warrant to  have taken such a view at all.                         It is settled law by a catena of decisions that Court  cannot sit in judgment over the wisdom of the Government in  the choice of the person to be appointed so long as the person  chosen possesses prescribed qualification and is otherwise  eligible for appointment.  This Court in R.K. Jain vs. Union of  India, (1993) 4 SCC 119 was pleased to hold that the  evaluation of the comparative merits of the candidates would  not be gone into a public interest litigation and only in a  proceeding initiated by an aggrieved person, it may be open to

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be considered. It was also held that in service jurisprudence it  is settled law that it is for the aggrieved person that is the non- appointee to assail the legality or correctness of the action and  that third party has no locus standi to canvass the legality or  correctness of the action.  Further, it was declared that only  public law declaration would be made at the behest of public  spirited person coming before the Court as a petitioner having  regard to the fact that the neither of respondent Nos. 1 and 2  were or could have been candidates for the post of Managing  Director of the Board and the High Court could not have gone  beyond the limits of Quo Warranto so very well delineated by a  catena of decisions of this Court and applied the test which  could not have been applied even in a certiorari proceedings  brought before the Court by an aggrieved party who was a  candidate for the post.          The judgment impugned in this appeal not only exceeds  the limit of Quo Warranto but has not properly appreciated the  fact that writ petition filed by the Employees’ Union and the  President of the Union \026 Halakatte was absolutely lacking in  bonafides.  In the instant case, the motive of the second  respondent Halakatte is very clear and the Court might in its  discretion declined to grant a Quo Warranto.          This Court in A.N. Sashtri vs. State of Punjab and  Others, (1988) Supp SCC 127 held that the Writ of Quo  Warranto should be refused where it is an outcome of malice  or ill-will.  The High Court failed to appreciate that on  18.01.2003 the appellant filed a criminal complaint against  the second respondent Halakatte that cognizance was taken  by the criminal court in CC No. 4152 of 2003 by the  jurisdictional magistrate on 24.02.2003, process was issued to  the second respondent who was enlarged on bail on  12.06.2003 and the trial is in progress.  That apart, the  second respondent has made successive complaints to the  Lokayukta against the appellant which were all held to be  baseless and false.  This factual background which was not  disputed coupled with the fact that the second respondent  Halakatte initiated the writ petition as President of the 1st  respondent Union which had ceased to be a registered trade  union as early as on 02.11.1992 suppressing the material fact  of its registration having been cancelled, making allegations  against the appellant which were no more than the contents of  the complaints filed by him before the Authorities which had  been found to be false after thorough investigation by the  Karnataka Lokayukta would unmistakably establish that the  writ petition initiated by the respondent Nos. 1 and 2 lacked in  bona fides and it was the outcome of the malice and ill-will the  2nd respondent nurses against the appellant.  Having regard to  this aspect of the matter, the High Court ought to have  dismissed the writ petition on that ground alone and at any  event should have refused to issue a Quo Warranto which is  purely discretionary.  It is no doubt true that the strict rules of  locus standi is relaxed to an extent in a Quo Warranto  proceedings.  Nonetheless an imposture coming before the  Court invoking public law remedy at the hands of a  Constitutional Court suppressing material facts has to be  dealt with firmly.          This Court in Dr. B. Singh vs. Union of India and  Others, (2004) 3 SCC 363 held that only a person who comes  to the Court with bonafides and public interest can have  locus.  Coming down heavily on busybodies, meddlesome  interlopers, wayfarers or officious interveners having  absolutely no public interest except for personal gain or  private profit either of themselves or as a proxy of others or for   any other extraneous motivation or for glare of publicity, this  Court at para 14 of the report held as under:-

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"The court has to be satisfied about: (a) the credentials  of the applicant; (b) the prima facie correctness or  nature of information given by him; and (c) the  information being vague and indefinite. The information  should show gravity and seriousness involved. Court  has to strike a balance between two conflicting  interests: (i) nobody should be allowed to indulge in wild  and reckless allegations besmirching the character of  others; and (ii) avoidance of public mischief and to avoid  mischievous petitions seeking to assail, for oblique  motives, justifiable executive actions. In such case,  however, the court cannot afford to be liberal. It has to  be extremely careful to see that under the guise of  redressing a public grievance, it does not encroach upon  the sphere reserved by the Constitution to the executive  and the legislature. The court has to act ruthlessly while  dealing with imposters and busybodies or meddlesome  interlopers impersonating as public spirited holy men.  They masquerade as crusaders of justice. They pretend  to act in the name of pro bono publico, though they  have no interest to the public or even of their own to  protect."                        

It is useful to refer to the case of The University of  Mysore and Another vs. C.D.Govinda Rao and Another,  [1964] 4 SCR 575 at pages 580 and 581 "As Halsbury has observed:  "An information in the nature of a quo warranto took  the place of the obsolete writ of quo warranto which lay  against a person who claimed or usurped an office,  franchise, or liberty, to inquire by what authority he  supported his claim, in order that the right to the office  or franchise might be determined."  Broadly stated, the quo warranto proceeding affords a  judicial remedy by which any person, who holds 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, so that his title to it  may be duly determined, and in case the finding is that  the holder of the office has not title, he would be ousted  from that office by judicial order. In other words, the  procedure of quo warranto gives the Judiciary a weapon  to control the Executive from making appointment to  public office against law and to protect a citizen from  being deprived of public office to which he has a right.  These proceedings also tend to protect the public from  usurpers of public office, who might be allowed to  continue either with the connivance of the Executive or  by reason of its apathy. It will, thus, be seen that before  a person can effectively claim a writ of quo warranto, he  has to satisfy the Court that the office in question is a  public office and is held by a usurper without legal  authority, and that inevitably would lead to the enquiry  as to whether the appointment of the alleged usurper  has been made in accordance with law or not."  It is also beneficial to refer to the decision of this Court in  Ghulam Qadir vs. Special Tribunal and Others, (2002) 1  SCC 33 para 38 which reads thus:- "There is no dispute regarding the legal proposition that the  rights under Article 226 of the Constitution of India can be  enforced only by an aggrieved person except in the case where  the writ prayed is for habeas corpus or quo warranto. Another  exception in the general rule is the filing of a writ petition in  public interest. The existence of the legal right of the  petitioner which is alleged to have been violated is the

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foundation for invoking the jurisdiction of the High Court  under the aforesaid Article. The orthodox rule of  interpretation regarding the locus standi of a person to reach  the court has undergone a sea-change with the development  of constitutional law in our country and the constitutional  courts have been adopting a liberal approach in dealing with  the cases or dis-lodging the claim of a litigant merely on  hyper-technical grounds. If a person approaching the court  can satisfy that the impugned action is likely to adversely  affect his right which is shown to be having source in some  statutory provision, the petition filed by such a person cannot  be rejected on the ground of his having not the locus standi.  In other words, if the person is found to be not merely a  stranger having no right whatsoever to any post or property,  he cannot be non-suited on the ground of his not having the  locus standi.

       It is settled law that Writ of quo warranto does not lie if  the alleged violation is not of a statutory nature.  Three  judgments relied on by Mr. P.P. Rao can be usefully referred to  in the present context.           In A. Ramachandran vs. A. Alagiriswami, Govt.  Pleader High Court, Madras & Anr. , AIR 1961 Madras 450,  the Court observed in paragraphs 74 and 104 as under: "\005\005\005Where an authority has power to make rules  relating to a subject matter and also the power to decide  disputes arising in the field occupied by that subject matter,  the two powers and functions must be kept distinct and  separate. This dispute must be decided with reference to the  rules in force at the time the adjudication had to be made  and, the rule making power cannot be invoked in relation to  that adjudication."  

"\005\005\005\005..It was also contended that it was  incumbent on the State Government to follow the principle of  appointment as laid down in 1932 G.O. so as to avoid  arbitrariness of nepotism. Reliance was placed upon the  decision in 1955-2 Mad LJ 49: (AIR 1955 Mad 305) (FB) for  the position that even non-statutory regulations and rules  contained in the Board’s Standing Orders are binding on the  State Government, and that it cannot depart from such rules  arbitrarily and capriciously to suit the exigencies of a  particular situation. In that case the Government purported  to exercise a revisional power over the Orders of the Board of  Revenue which it did not have as per Board’s Standing  Orders count at any time be modified or amended and that if  the Government had power to bring about such  modifications it followed that the Government had power of  revision though in terms such power was not conferred upon  it."     

In High Court of Gujarat & Anr. Vs. Gujarat Kishan  Mazdoor Panchayat & Ors., (2003) 4 SCC 712, it was held  by this Court that a Writ of Quo Warranto can only be issued  when the appointment is contrary to the statutory rules.  The  judgment in Mor Modern Coop. Transport Society Ltd. Vs.  Financial Commissioner & Secretary to Government of  Haryana, (2002) 6 SCC 269 was also relied on.            Thus it is seen that Writ of Quo Warranto lies if the  alleged violation is not of a statutory provision. The Official Memorandum of 1994 dated 23.12.1994 of  the Government of Karnataka reads thus: "GOVERNMENT OF KARNATAKA" No.DPAR/15/SDE 94               Karnataka Government Secretariat

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                                                  Vidhana Soudha                                         Bangalore dated 23.12.1994

OFFICIAL MEMORANDUM

       Sub:  Regarding re-appointment of retired Government                   Employee and extension of their services after                    Retirement.

       Ref :  i)  O.M. No. DPAR 42 SSR 77 dated 15.12.1977 ii)     O.M. No. DPAR No. 2 SDE 90 dated 22.02.1990

1.      In the O.M. referred at (1) above in respect of the teaching  staff viz., Teachers, Lecturers, Professors who are working in  educational institutions of the Education Department retiring  in the middle of the academic year, it was permitted to  continue their services till the end of the educational year  with the permission of the concerned officer.

2.      In the O.M. referred at (2) above, it was instructed not to re- appoint the retired Government servants and not to give them  extension of service.

3.      It has come to the notice of Government that retired  Government officers/officials have been re-appointed on  contact basis.  Hence it is ordered that the officers/officials  who have been re-appointed on contract basis and  continuing in service shall be removed from service forthwith.

4.      If the teaching staff working in educational institutions of the  Education Department are retiring in the middle of the  academic year, the instructions given in O.M. No. DPAR 42  SSR 77 dated 15.12.1977 are applicable.

5.      The procedure contained in the above paragraphs are also  applicable to the Autonomous/Grant-in-Aid institutions,  Boards and the Companies which are subordinate to or  under the control of the Government."            

   Sd/-      (A.V. Ramamurthy) Joint Secretary to Government                D.P.A.R.(SR)"   

Paragraph 5 of the Memorandum makes it amply clear that  Boards are included within the said memorandum and hence  the procedure adopted for Government employees will equally  apply to the Board.  The initial appointment of the appellant  as Managing Director was on 28.1.1998.  He was relieved vide  relieving Order dated 31.1.2004 as M.D.  His pension order  stated that he has retired as M.D.  Thereafter he was re- appointed as M.D. on 31.1.2004.  The said Notification reads  as follows: "In exercise of the powers conferred under Section 4(2) of  the KUWS&D B Rules, 1973 (Karnataka Act 25/1974) Sri  B. Srinivasa Reddy, No. 427 12th Main, RMV Extension,  Bangalore \026 560 080 is appointed as Managing Director,  KUWS&D B on contract basis w.e.f. 01.02.2004 until  further orders.

       The terms and conditions will be issued separately."

Therefore, the official memorandum squarely applies to the  appellant.

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In Union of India vs. K.P. Joseph & Ors., (1973) 1 SCC  194, it was held by this Court that administration instructions  made to fill gaps or to supplement the statutory rules and  affecting conditions of service would be binding and  enforceable by Writ under Art. 226 of the Constitution of  India. A close scrutiny of the official memorandum would show  that it is restrictive to appointment to any post but as a  general application to all the posts and that the intention of  the memorandum is that retired person should not be  appointed again. No violation of Section 4(2) of the Act and Rule 3 of the  Rules:         There is no violation of Section 4(2) and Rule 3 as held by  the High Court because the appellant having been the Chief  Engineer of the Board had experience in administration and  capacity in commercial matters before he was appointed as  M.D. on contract basis by the Government.  Section 4(2) of the  Act reads as under: "4(2) The Chairman and the Managing Director shall  possess the prescribed qualification.  They and the other  directors shall be appointed by the Government."

Rule 3 of the Rules deals with Qualification for  appointment of the Chairman and the Managing Director.   Rule 3 reads thus: "The Chairman shall be a person having experience in  matters concerning public welfare.  The Managing Director  shall be a person having experience in Administration and  capacity in commercial matters."

In this context, it is useful to peruse the original file  produced by Mr. Sanjay R. Hegde, learned counsel appearing  for the State, before us.  A note was prepared by the Secretary  to Government, Urban Development Department, in regard to  the appointment of M.D. of the Board: "Subject :  Appointment of Managing Director                            of KUWSDB

1.      Shri B. Srinivasa Reddy, Managing  Director of KUWSD will retire from  service on 31.1.2004.

2.      As per Section 4(2) of the  Karnataka Urban Water Supply  and Drainage Board Act, 1973, the  Managing Director shall be  appointed by the government as  per Section 6(1).  He shall hold  office during the pleasure of the  government.  As per Rule 3 of the  KUWSDB Rules 1974, the  Managing Director shall be a  person having experience in  administration and capacity in  commercial matters.  As per  KUWSDB Rule 4(2), the Managing  Director shall be a whole time  officer of the Board and shall be  paid remuneration as prescribed. 3.      Therefore, it is necessary for the  Government to appoint the  Managing Director.  The Managing  Director can be a serving Officer of  the Government who can be sent

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on deputation to the KUWSDB.  It  is even open to the Government to  appoint a retired official to the post  of Managing Director.  But  generally Government has not  appointed any retired official either  to KUWSDB or other Boards and  Corporations of the Government. 4.      A decision has to be quickly taken  as the Managing Director of  KUWSDB has to hold negotiations  with the World Bank on 9.2.2004  regarding the new Water Supply  and Sanitation Improvement  Programme. 5.      In my view, an Engineer in water  supply/public health engineering  would be most ideal for the post of  Managing Director, KUWSDB."

The file was placed before Shri S.M. Krishna, Chief  Minister.  The order passed by the Chief Minister is at page 2  of the File which reads thus:         "This is a critical juncture for Karnataka  Urban Water Supply and Sewerage Board.   Considering the projects on hand and the need to  complete them within a definite time frame, there  should be continuity in leadership and  management.  The services of Shri B. Srinivasa  Reddy, are need for the present.   

       Shri Srinivasa Reddy’s continuation will help  in the important negotiations with the World Bank  scheduled to be held in February, regarding the new  Water Supply and Sanitation programme.

       Considering the adverse seasonal conditions  prevailing and prolonged drought, there is likelihood  of severe water scarcity in urban areas in the  coming months.  For this, a sum of Rs.15 crores by  way of relief has been earmarked in the period  February to June 2004.  The Urban Water Supply  Board will be required to augment water availability,  especially in chronic places like Bagalkot, Pavagada  and Hubli-Dharwad.  For planning and executing  these contingency measures, Shri Srinivasa Reddy’s  presence is essential.

       Shri Srinivasa Reddy who has retired today  may be appointed on Contract basis from 1.2.2004  until further orders."

It is thus seen that the Chief Minister after considering  the relevant material, experience in administration and  capacity in commercial matters of the appellant accepted the  office note put up by the Secretary to Government and  appointed a retired official to the post of M.D.  Ample reasons  are given for considering the name of the appellant and the  consequential appointment made by the Government. In the instant case, there is no violation of statutory  provision and, therefore, in our view, a writ of Quo Warranto  does not lie.  If there be any doubt, it has to be resolved in  favour of upholding the appointment. In Statesman (Private) Ltd. Vs. H.R. Deb, (1968) 3 SCR  614, Hidyatullah, C.J., speaking for the Constitution Bench

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indicated: "The High Court in a quo warranto proceeding  should be slow to pronounce upon the matter unless there  is a clear infringement of the law."

In the circumstances which we have narrated above in  paragraphs supra, it is indeed difficult to hold that the  appellant did not have the requisite qualification. The above ruling was followed in A.N. Shashtri vs.  State of Punjab & Ors., 1988 (Supp) SCC 127.  We are of the  view that in the facts of this case, the reasonable conclusion to  reach should have been that the writ petitioners had failed to  establish that the appellant did not possess requisite  qualification and the appeals are, therefore, be allowed and  the judgment of the High Court has to be set aside and the  writ petition has to be dismissed. The finding of disqualification given in the earlier round  of litigation while the appellant was holding a lien on the post  of Chief Engineer i.e. while he was an officer of the Board,  ceased to hold good after the appellant retired from the service  of the Board on 31.1.2004 (AN) and the appointment  impugned in the second round of litigation was effective from  1.2.2004 after the appellant had ceased to be an officer of the  Board. Contractual appointment/powers of the Government Mr. Raju Ramachandran, learned senior counsel  appearing for the Trade Union, fairly conceded that the  Government has unrestricted power to make contractual  appointment.  Even otherwise, the Government, in our  opinion, has the undoubted power to make a contractual  appointment until further orders.  The finding to the contrary  is ex facie erroneous. The Notification dated 31.1.2004 clearly states that the  appointment is on contract basis and until further orders.   While laying down the terms of appointment in its order dated  21.4.2004, the Government of Karnataka clearly stated that  "term of contractual appointment of Sri B. Srinivasa Reddy  shall commence on 1st February, 2004 and will be in force  until further orders of the Government and this is a temporary  appointment."  Section 6(1) of the Act categorically states that  the Managing Director shall hold office during the pleasure of  the Government.  Power and functions of the of the Board are  laid in Chapter V of the Act.  A reading of the Act clearly  shows that neither the Board nor its Managing Director is  entrusted with any sovereign function.  Black’s Law Dictionary  defines public office as under: "Public Office:  Essential characteristics of "public  office" are (1) authority conferred by law, (2) fixed tenure of  office, and (3) power to exercise some portion of sovereign  functions of government, key element of such test is that  "officer" is carrying out sovereign function.  Spring v.  Constantino 168 Conn.563, 362 A.2d 871, 875.  Essential  elements to establish public position as "public office" are  position must be created by Constitution, legislature or  through authority conferred by legislature, portion of  sovereign power of government must be delegated to  position, duties and power must be delegated to position,  duties and powers must be defined, directly or impliedly,  by legislature or through legislative authority, duties must  be performed independently without control or superior  power other than law, and position must have some  permanency and continuity, State ex rel. E.li Lilly & Co. v.  Gaertner, Mo.App 619 S.W. 2d 6761, 764."

Carrying out sovereign function by the Board and

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delegation of a portion of sovereign power of Government to  the Managing director of the Board and some permanency and  continuity in the appointment are quintessential features of  public office. Every one of these ingredients are absent in the  appointment of the appellant as Managing Director of the  Board.  This aspect of the matter was completely lost sight of  by the High Court. The High Court, in the instant case, was not exercising  certiorari jurisdiction.  Certiorari jurisdiction can be exercised  only at the instance of a person who is qualified to the post  and who is a candidate for the post.  This Court in Dr.  Umakant Saran vs. State of Bihar, (1973) 1 SCC 485 held  that the appointment cannot be challenged by one who is  himself not qualified to be appointed.  In Kumari Chitra  Ghose vs. Union of India, (1969) 2 SCC 228, a Constitution  Bench of this Court held as under: "The other question which was canvassed before the  High Court and which has been pressed before us relates  to the merits of the nominations made to the reserved  seats.  It seems to us that the appellants do not have any  right to challenge the nominations made by the Central  Government.  They do not compete for the reserved seats  and have no locus standi in the matter of nomination to  such seats.  The assumption that if nominations to  reserved seats are not in accordance with the rules all  such seats as have not been properly filled up would be  thrown open to the general pool is wholly unfounded."

But the High Court of Delhi in P.L. Lakhanpal vs. Ajit Nath  Ray, AIR 1975 Delhi 66 held as under:         "Another facet of the preliminary objection relates to  the allegations of mala fides made in the petition.  It will  bear repetition to state that the preliminary objection is on  the assumption and not admission that the appointment  of Justice A.N. Ray was mala fide.  It is indisputable that  mala fide action is no action in the eye of law.  But, to my  mind, the mala fides of the appointing authority or, in  other words, the motives of the appointment authority in  making the appointment of a particular person are  irrelevant in considering the question of issuing a writ of  quo warranto\005.."

The discretion available to the competent authority under  the Rules has been exercised by the appointing authority in  making the appointment of the appellant.  That could not have  been annulled by the High Court.  In Writ Petition No. 44001  of 2005 decided on 12.4.2002, the very High Court had  directed the Government by a direction akin to mandamus to  immediately take steps to appoint the Managing Director of  the Board in accordance with the Act and the Rules.  The  present appointment of the appellant was made under the  provisions of the Act and the Rules.  This appointment could  not have been interdicted by a writ of Quo Warranto as it  amounted to issuance of writ of Quo Warranto to disobey the  mandamus already issued and is in operation.  Such a course  adopted by the High Court is contrary to law declared by this  Court Rajendra Prasad Yadav vs. State of Madhya  Pradesh,  (1997) 6 SCC 678.   In Satish Chandra Anand vs. Union of India, (1953)  SCR 655, a Constitution Bench of this Court while dealing  with a case of a contract appointment which was being  terminated by notice under one of its clauses, this Court held  that Articles 14 & 16 had no application as the petitioner  therein was not denied equal opportunity in a matter relating  to appointment or employment who had been treated just like

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any other person to whom an offer of temporary employment  under these conditions was made.  This Court further held as  under: "The State can enter into contracts of temporary  employment and impose special terms in each case,  provided they are not inconsistent with the Constitution,  and those who choose to accept those terms and enter  into the contract are bound by them, even as the State is  bound."

In P.K. Sandhu (Mrs.) vs. Shiv Raj V. Patil, (1997) 4  SCC 348, it was held by this Court as under: "The power to make an appointment includes the  power to make an appointment on substantive basis,  temporary or officiating basis, ad hoc basis, on daily  wages or contractual basis."

Legal Malice:         It was argued by Mr. Raju Ramachandran, learned senior  counsel appearing for the respondents, that there was no  reason for the State to re-appoint the appellant on the post of  M.D., specially in view of the following facts: i)      His initial appointment to Managing Director on 28.01.1998 was  admittedly in contravention of Section 7(1)(d) of the Act.  Yet, he  continued till 31.1.2004.  He, thereafter, withdrew his appeal  thereby confirming that his entire tenure as M.D. from 1998 to  2004 was illegal and in contravention of the Act. ii)     He was relieved from his duty as "Managing Director" and is  receiving pension accordingly. iii)    Reports pertaining to malpractices committed by the petitioner  of which he has not exonerated so far reveal that he is not a  person with an undoubtful character.   iv)     List of persons appointed at the post of Managing Director of the  Board since its inception show that only IAS Officers or PWD  officials have been appointed at this post.  For the first time, a  retired Board servant was brought as the Managing Director for  "until further orders". v)      The note sheet of the Chief Minister, though proposes certain  exigencies, do not indicate that he is the only person who can  cater to such demands. vi)     There was no need for an appointment for "until further orders"  where admittedly, the purpose of appointment would have been  accomplished at the most by June,2004.       According to him something was done by the State  without excuse and that it is an act done wrongfully and  wilfully without reasonable or probable cause.  He also referred  to the findings of the High Court on legal malice. In our opinion, the finding of legal mala fides is  unsustainable being based on a misunderstanding of the law  and facts.  When a competent and experienced officer of an  outstanding merit is appointed to a higher post on contract  basis after his super-annuation from service in larger public  interest does not suffer from legal malice at all.  The decision of  the then Chief Minister, Shri S.M. Krishna, recorded in the file  which is also extracted by the High Court at page 69 of S.L.P.  Paper book, Vol.II.  In the context of the note put up by the  Secretary of the Department, it is again extracted at pages 67  & 68 which clearly bring out the fact that the appointment was  made in the interest of the Board and the State at a time when  nobody else other than the appellant could have served the  interests of the State better.  The High Court failed to  appreciate the element of urgency involved in making the  appointment because of impending negotiations with the World  Bank scheduled for 9.2.2004.  The writ petition, in our  opinion, was motivated as respondent No.1 had lodged a false

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complaint to the Lokayukta against the appellant which was  found to be baseless by the Lokayukta (Annexure P-9).  A  petition praying for a Writ of Quo Warranto being in the nature  of public interest litigation, it is not maintainable at the  instance of a person who is not unbiased.  The second  respondent is the President of the first respondent- Union.   He  has chosen this forum to settle personal scores against his  erstwhile superior officer after his retirement.  The  proceedings, in our view, is not meant to settle personal scores  by an employee of the department.  The High Court, in our  view, ought to have dismissed the writ petition filed by  respondent No.1 at the threshold. In any event, respondent No.1 failed to discharge the  heavy burden to substantiate the plea of mala fides (E.P.  Royappa vs. State of  Tamil Nadu, (1974) 2 SCR 348.    The finding of the High Court that the appointments from  legal mala fides is wrong.  The Court relied on the judgment in  Centre for Public Interest Litigation & anr. Vs. Union of  India & Anr.  (2005) 8 SCC 202.  It was a case of appointment  of an officer against whom criminal proceedings were pending  even the Commission will look into the charges against the  officer, therefore, the above ruling has no application at all in  the present case. The Division Bench noted that certain allegations were  made against the appellant and observed in paragraph 3 that  the complaint was stated to be pending before the Lokyukta in  the matter relating to financial irregularities of the Board and  that the Comptroller and Auditor General submitted a report  for the year ending 31.3.2000 wherein the appellant has paid  the amounts to contractor even before they became due  resulting in loss of interest of Rs.15.40 lakhs to the Board.   However, the Division Bench did not take notice of that fact  that Lokayukta had completely exonerated the appellant.   Until further orders Mr. Raju Ramachandran, learned senior counsel  appearing for the respondents, submitted that the pleasure of  the Government and discretion cannot be completely  discretionary and at the ipse dixit of the executive.  Even a  contractual appointment has to be made with a certain  ascertainable period and cannot be open-ended.  According to  him, use of words "until further orders" is not a safety notch  but is rather prone to misuse.  Even in the constitutional  scheme, under Chapter XIV of the Constitution, a contractual  appointment presumes a specific period.  Art. 310(2) of the  Constitution provides that: "(2) Notwithstanding that a person holding a civil post  under the Union or a State holds office during the  pleasure of the President or, as the case may be, of the  Governor of the State, any contract under which a  person, not being a member of a defence service or of an  all-india service or of a civil service of the Union or a  State, is appointed under this Constitution to hold such  a post may, if the President or the Governor, as the case  may be, deems it necessary in order to secure the  services of a person having special qualifications, provide  for the payment to him of compensation, if before the  expiration of an agreed period that post is abolished or  he is, for reasons not connected with any misconduct on  his part, required to vacate that post."

       In E.P. Royappa vs. State of Tamil Nadu & anr.  (supra), further question before us is whether the appointment  made by the Government includes any component of mala  fides.  The burden of establishing mala fides is very heavy on  the person who alleges it.  The allegations of mala fides are

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often more easily made than proved, and the very seriousness  of such allegations demands proof of a higher order of  credibility.  Here respondents 1 & 2 have flung a series of  charges of oblique conduct against the then Chief Minister  through their advocate.  The anxiety of the Court should be all  the greater to insist on a high decree of proof.  The Court  would, therefore, be slow to draw dubious inferences from  incomplete facts placed before it by a party, particularly when  the imputations are grave and they are made against the  holder of an office which has a high responsibility in the  administration.           This Court, in the above judgment, held that such is the  judicial perspective in evaluating charges of unworthy conduct  against ministers and other high authorities, not because of  any special status which they are supposed to enjoy, nor  because they are highly placed in social life or administrative  set up, these considerations are wholly irrelevant in judicial  approach \026 but because otherwise, functioning effectively  would become difficult in a democracy.           Two important considerations must weigh with us in  determining our approach to these questions.    First, the post  of Managing Director is a highly respectable post.  It is a post  of great confidence \026 a lynchpin in the administration and  smooth functioning of the administration requires that there  should be complete rapport and understanding between the  Managing Director and the Chief Minister.  The Chief Minister  as a Head of the Government is in ultimate charge of the  administration and it is he who is politically answerable to the  people for the achievements and failures of the Government.   If the Chief Minister forfeits the confidence on the appellant,  he may legitimately in the larger interests of administration  appoint him until further orders as M.D. of the Board.  It does  not involve violation of any legal or constitutional rights.   Secondly that the vast multitudinous activities in which a  modern State is engaged, there are bound to be some posts  which require for adequate discharge of their functions, high  degree of intellect and specialized experience.  It is always a  difficult problem for the Government to find suitable officers  for such specialized posts.  There are not ordinarily many  officers who answer the requirements of such specialized posts  and the choice with the Government is very limited and this  choice becomes all the more difficult, because some of these  posts, though important and having onerous responsibilities,  do not carry wide executive powers and officers may not,  therefore, generally be willing to be transferred to those posts.   The Government has in the circumstances to make the best  possible choice it can, keeping in view the larger interests of  the administration.  When in exercise of this choice, the  Government transfers an officer from one post to another, the  officer may feel unhappy because the new posts does not give  him the same amplitude of powers which he had while holding  the old post.  But that does not make the appointment  arbitrary.  So long as the appointment is made on account of  the exigencies of administration, it would be valid and not  open to attack under Arts. 14 & 16.  Here the post of M.D. was  admittedly a selection post and after careful examination of  the merits, the Chief Minister selected the appellant for the  post of M.D.  It was not the case of the respondents that the  appellant was not found qualified to the task or that his work  was not satisfactory.         It was argued by Mr. P.P. Rao, learned senior counsel,  appearing for the appellant that the Division Bench while  answering Point No.2 in paragraph 25 that the order of  appointment passed by the State Government is not a regular  appointment.  It has further been observed that Section 4(2) of

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the Act and Rule 3 of the Rules framed do not permit the  Government to appoint the Managing Director on contractual  basis.  It was submitted that the finding of the   Division Bench as well as the single Judge are legally  unsustainable.  The Act makes clear distinction between  appointments to the Board and appointment of Officers and  servants of the Board.  All appointments of Directors are  "appointments at the pleasure of the Government".  He drew  our attention to Section 6(1) of the Act which reads thus: "6(1) All directors including the Chairman and the  Managing Director shall hold office during the pleasure of  the Government.  The expression ’contract basis’ is only to  indicate that the appointment was to subsist till the  withdrawal of the pleasure of the Government.  It could  not be said that the contractual appointment is made  contrary to the Rules that contemplate regular  appointment."

    It is pertinent to point out that there are no separate  conditions of service or tenure prescribed for ’Directors’, which  expression under the Act includes the Managing Director.   Appointments at the pleasure of the Government are not the  same as ordinary appointments.  It was further submitted that  ordinary principles of recruitment applicable to posts governed  by Chapter I of Part XIV of the Constitution of India would not  apply to the instant appointment being an appointment at the  pleasure of the Government.  This is also for the simple reason  that ordinary appointments in public service entail security of  tenure which has an essential feature of such appointment.   These characteristics are noticeably absent in the instant case. Our attention was also drawn to the conclusion reached  by the High Court that the appellant was not qualified for the  post and under Rule 3 of the Rules, the qualification for  appointment is explicitly provided.  No age of retirement is  prescribed for Director including Managing Director.  Neither  any age limit for appointment is prescribed.  These  qualifications do not prescribe any age limit.  Section 8 of the  Act itself suggests that even a legal practitioner could be  appointed as a Director.  The only limitation or disqualification  is with regard to a serving officer or servant of the Board from  being appointed as Director.  Section 7(1)(d) does not apply to  an officer or servant who ceased to be such on the date of his  appointment as Managing Director.  Section 7 stipulates all  disqualifications for appointment as Director.  It is not the case  of the contesting respondent that the appellant was  disqualified from holding the post on any other grounds. Our attention was also drawn to the judgment of the  Division Bench holding that the State Government and the  Board could not have filed an appeal against the order of the  learned single Judge.  Reference has been made to the  judgment of this Court in B.R. Kapur vs. State of Tamil  Nadu & Anr., 2001(7)SCC 231.  The said judgment is wholly  in applicable to this case inasmuch the issue therein did not  pertain to the appointment under service Rules.  In the said  case, no question relating to the issuance of Writ of Quo  Warranto pertaining to service jurisprudence was involved.   That case related to appointment by the Governor of a person  convicted of a criminal offence by which she stood disqualified  under the provisions of the Representation of Peoples Act,  1951.  Moreover, the Writ of Quo Warranto in that case was  issued in the light of several provisions of the Prevention of  Corruption Act, the Representation of Peoples Act, 1951 and  various other enactments which clearly prohibited the  appointment of a convicted person to a public office.  There is  no legal postulation in the said judgment which seeks to

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restrain any interested party from challenging a judgment.  In  the instant case, the appellant did not solicit or engineer his  appointment.  His appointment was at the instance of the State  Government in accordance with provisions of the Act and the  Rules.  The State Government has power to take its own  decision for deciding on a suitable candidate for appointment  as long as the eligibility criteria was satisfied.  The  appointment in the instant case is not one of recruitment, but  of a different species of appointment for rendering services.  It  is more in the nature of a contract for service.  This is specially  required considering fact that the functions of the Board are  essentially technical in nature as would be evident from a  perusal of Sections 16 & 17 of the Act.   At any event implicit in the finding of the Division Bench  that the appointing authority has no right to appeal in Quo  warranto proceedings is that the Court cannot probe the mind  of the appointing authority in a motion for Quo Warranto.  The  High Court erred in probing the mind of the government and  acted contrary to its own finding on the role of appointing  authority in Quo Warranto proceedings.  The reasons felt out  by the learned Judges of the Division Bench are not  sustainable in law and the impugned judgment is liable to be  interfered with in these appeals.  The learned Judges are not  right in quashing the appointment of the appellant as  Managing Director on the misconception that he has been re- appointed to the said office, whereas it was a fresh  appointment under the provisions of the Act and in accordance  with the prescribed qualification and eligibility under the Act.   Further the appointee holds the office during the pleasure of  the Government as provided under Section 6(1) of the Act.     The learned Judges are not correct in holding that the  Government is not affected by allowing the writ of Quo  Warranto against the appointee and observed that the  Government ought not have filed the appeal.  It is unfortunate  that the learned Judges have observed that the Government  has filed the appeal at the instance of the appointee.  The  learned Judges, in our opinion, failed to appreciate that it is  the duty of the Government to justify the appointment as such  there is no wrong in filing the writ appeal.   In the result, we hold : (a)     that the appellant was not disqualified for  appointment as Managing Director w.e.f.  1.2.2004. (b)     There is no bar for appointment to the post in  question on contract basis.  The Government  has absolute right to appoint persons on  contract basis. (c)     Writ of Quo warranto does not lie if the alleged  violation is not of a statutory provision.  (d)     There is no violation of Section 4(2) of the Act  and Rule 3 of the Rules because the appellant  had experience in administration and capacity  in commercial matters before he was appointed  as Managing Director on contract basis by the  Government. (e)     The Government has no doubt power to make  contractual appointment until further orders.  The power included the power to make  appointment on substantive basis temporary,  officiating basis, ad hoc basis, daily wages or  contractual basis. (f)     Writ filed by respondents 1 & 2 is motivated. (g)     The petitioners in the writ petition, respondent  No.1 herein\026 which is an unregistered  Association under the Trade Unions Act cannot

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maintain the writ petition. (h)     The findings of legal mala fides is unsustainable  and has no basis.

The finding of legal mala fides suffers from other infirmities as  far as placing reliance on the complaints against the appellant  without adverting to the orders of the Lokyukta detail  examination, the appellant is unequivocal terms in both the  cases.    For the foregoing reasons, the appeals are allowed and  the order impugned in this appeal passed by the Division  Bench of the High Court in W.A. No. 86/2006 affirming the  judgment of the learned single Judge is set aside.   

The Division Bench of the High Court ordered cost in the  writ appeal.  There is no justification in ordering cost in the  facts and circumstances of the case.  Therefore, the appellant,  State Government and respondent No.4 are entitled to refund  the cost, if it has already been paid.  However, we are not  ordering cost against respondent Nos. 1 & 2 taking into  consideration of the financial constraint of the employees and  by taking a lenient view of the matter. In view of this  judgment, we allow the appeals filed by  Mr. B. Srinivasa Reddy and by the State of Karanataka. As  noted herein earlier, the appellant has already been released  and in his place a person has already been appointed as a  Managing Director of the Board on contract basis.  Keeping  this admitted fact in mind, we, therefore, keep it on record that  the Government or the Board would be at liberty to consider  and appoint a candidate, if occasion arises, on contract basis.   If such a situation does arise in that case it would be open to  the State or the Board to consider the candidature of the  appellant (B.Srinivasa Reddy) with others.