Uday Shankar Singh v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** WPA/41/2016 Uday Shankar Singh ...

Petitioner Vs.

The Andaman and Nicobar Administration & others.

...

Respondents Mr.KMB Jayapal, Advocate ... for the petitioner Mr.Arul Prasanth, Advocate ...for the official respondents Mrs.Anjili Nag, Advocate ... for the pvt. respondent September 15, 2021 [GNC] Item No.1 This case has a chequered history. Since 2016 the matter is pending in the docket of the Court after having travelled to the Division Bench.

The writ petition is restricted to issuance of a writ in the nature of quo warranto assailing the appointment of the respondent No.5 to the post of Finance Officer and Accounts Officer completely in flagrant violation of the extant rules and regulations applicable in this regard. The writ petition was maintained as the direction was passed for filing the affidavit in opposition and reply thereto and ultimately, the matter was taken up finally on July 3, 2018 when the Single Bench dismissed the said writ petition on the ground of maintainability. It was observed in the said order that the petitioner has no locus standi to question the public position occupied by the private respondent nor could be said as a person aggrieved to maintain the prerogative in the nature of quo warranto.

The said order was carried to a Division Bench in a mandamus appeal which came up on August 22, 2018 and the said order was set aside. The Division Bench observed that the prerogative in the nature of quo warranto is more an information led to the Court and it is the duty of the Court to exercise its power of judicial review following whether the executives have followed the law in offering public employment. While setting aside the order of the Single Bench and realizing that there is an attempt on the part of the petitioner to prevaricate his stand at every stage of the proceedings directed the petitioner not to supplement his pleadings beyond whatever has been said in the writ petition and in the reply. What can be logically deduced from the aforesaid observation is that the petitioner was restricted to his pleadings made in the writ petition and the reply filed to the opposition and used by the contesting respondents and shall not travel beyond the periphery thereof.

Mr.Jayapal, learned advocate appearing for the petitioner submits that the appointment of the respondent No.5 to the post of Commercial Accountant, Finance Officer and the Accounts Officer are in flagrant violation of the norms and regulations for an employment. He further submitted that there was no rules or the regulations framed by the Administration pertaining to the employment and therefore, appointment of the respondent No.5 cannot be said to be legal nor sustainable. He invited the attention of the Court to various orders and the notifications to substantiate his claim that even those notifications which sees

the light of the day at later point of time have been violated and the criterions for consideration has been totally shattered and has not been adhered to.

The aforesaid submission of Mr.Jayapal was vehemently refuted by Mrs.Nag, learned advocate appearing for the private respondent. According to her, the Division Bench has restricted the writ petitioner within the four corners of the writ petition and the reply, if any, filed and the manner in which the argument is advanced travels beyond the periphery of the writ petition as no case of such nature has been made out. Mrs.Nag draws my attention to the pleadings in the writ petition to buttress her submission that all along the petitioner has proceeded on the basis that the appointment of the said respondent is in violation of the extant rules and the regulations and therefore, the submission that there was no existence of rules and regulations is hit by the mandate of the Division Bench. Furthermore, Mrs.

Nag draws my attention to the relevant claim in the writ petitioner which pertains to quashing of an order appointing the said respondent to the post of Finance Officer on ad hoc and regular basis and subsequently to the post of Accounts Officer. According to Mrs.Nag there is no challenge to the appointment of the said respondent to the post of Commercial Accountant and therefore, the petitioner cannot fall back to such appointment in absence of a specific pleadings made in the writ petition.

On the conspectus of the aforesaid facts, the scope in the writ petition is within the limited compass more particularly on the anvil of the observation of the Division Bench restricting the petitioner to his pleadings. As indicate above, the meaningful reading of the averments made in the writ petition leaves no ambiguity in my mind that the prerogative of the quo warranto is exhausted by the petitioner complaining of the violation of the rules and regulations relating to appointment to such posts and my endeavour has failed to find out any case having been made out that such appointment was made in absence of any rules or regulations.

A person who have approached the Court must clearly plead the right to sue and the accrual of the cause of action based upon the material facts and cannot led his claim on the weaknesses in the pleading of the other side. Though the aforesaid observation is made to bring the clarity of the circumstances that has arisen but the fact remains that the petitioner was restricted to its pleadings made in the writ petition and in the reply if there be any.

My attention is drawn to the several orders issued while promoting the private respondent to the post of Commercial Accountant than to Finance Officer and Accounts Officer and it appears that even if the notification pertaining to the recruitment rules came subsequent to the aforesaid exercise yet the mandate which has been given does not appear to have been violated. If the authorities have acted reasonably without offending the right

guaranteed under the Constitution, I do not find any justification in the action of the respondent authorities in acting in a fair and transparent manner. Furthermore, the appointment cannot be challenged if the same has been made following the draft rules in anticipation that the same would be approved in future which actually happened and such appointment cannot be impinged for want of approved recruitment rules or the regulations. Since the petitioner has failed to made out a clear case of quo warranto and no material could be produced by him in support of such pleading, I do not find any justification in allowing the relief claimed in the instant writ petition. The writ petition sans substance, the same is hereby dismissed. ( Harish Tandon, J.)