Kurian Joseph, J.@mdashQuo warranto is derived from Latin which literally means ''by what authority''. It is a judicial remedy against an intruder or an usurper of an independent or substantive public office or franchise or liberty. The writ of quo warranto is an ancient Common Law remedy of a prerogative nature. A person holding an office, if not able to establish his claim as well- founded, was to be ousted. In Corpus Juris Secundum, (Volume 74, para 1, page 174 )quo warranto is defined thus:
Quo warranto is a proceeding to determine the right to the exercise of a franchise or office and to oust the holder if his claim is not well founded, or if he has forfeited his right.
In the Commentaries of Blackstone, (page 262 it is explained thus:
The ancient writ of quo warranto was in the nature of a writ of right for the King against any office, franchise or liberty of the Crown to inquire by what authority he supported his claim, in order to determine the right.
In Halsbury''s Laws of England, (4th Edition Volume I page 163) the doctrine is explained as follows:
An information in the nature of 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 enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.
The first case in India on quo warranto was from Calcutta in Corkhill, Re reported in ILR (1895) Cal 717. That was a case where one Mr. Corkhill, who was holding the office of the Commissioner of the Corporation, was called upon to explain under what authority he held the office. The allegation was that his name had been proposed and approved by voters who were not on the electoral list. Though on merits it was found that the voters were qualified, the power of the court to issue a writ of quo warranto was upheld in that case.
2. The writ of quo warranto is a prerogative writ. As is stated in the Halsbury''s Laws of England, 4th Edition, Volume 1, para 169, the sole object of quo warranto is to enquire by what authority the incumbent was exercising the right to a public office and to have him ousted if his claim or assertion is not well founded. The Supreme had occasion to consider the scope of the writ of quo warranto in
Broadly stated the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise or liberty is called upon to show by what right he holds the said office, franchise or liberty. If the enquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. It also protects a citizen from being deprived of public office to which he may have a right.
In a recent decision in B.R. Kapur v. State of Tamil Nadu : AIR 2001 SC 3435 the Supreme Court has again dealt with in detail the principles underlying the writ of quo warranto.
3. In
We are fully aware of the delicacy and sensitivity of the matter and the stage at which the matter has been brought before us for judicial scrutiny. We make it clear that ordinarily the domain in such matters lies wholly with the constitutional authorities mentioned in Article 217 of the Constitution, but in exceptional circumstances like the present, where the incumbent considered for appointment as a Judge of a High Court does not fulfil the qualification as laid down expressly under the provisions of the Constitution itself, it becomes our bounden duty to see that no person ineligible or unqualified is appointed to a high constitutional and august office of a Judge of a High Court.
4. For instituting a writ of quo warranto, it is not necessary that any fundamental or other legal right of the applicant is infringed. Any person is free to challenge the validity of an appointment to a public office. However, the court must be satisfied that the application is bona fide and there are no mala fides. If the application is not bona fide and the applicant is a mere wayfarer or a pawn in the hands of others, the court may reject the application. However, even if the applicant is not an aspirant for the office or even if he has no interest in the appointment, he is entitled to apply for the writ as a private relator or an ordinary citizen, as has been held by the Allahabad High Court in
The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception of the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest.
5. In the present case we are called upon to analyse and address some of the issues on the first principles relating to writ of quo warranto and hence we have ventured to deal with the same. Once the principles are stated, it may not be necessary to deal with various contentions. The defences are mainly on the locus standi, bona fides etc. No doubt unlike the writs of habeas corpus and prohibition which are issued ex debito justitiae, the issue of the writ of quo warranto is in the discretion of the court. Therefore, the writ can be refused if the same is instigated out of malice or ill-will or if it is vexatious or if the result will be futile or when an alternate remedy which is equally efficacious, is available. But a writ of quo warranto lies where appointment to a public office is contrary to law and if that factual position is available in a case, the court has to exercise its jurisdiction unless of course the court is otherwise entitled to use its discretion to deny interference on the well settled principles of non-suiting an otherwise vexatious litigant or when the exercise would be futile or when the same is moved only out of ill-will or when there is an equally efficacious alternate remedy available. In the present case there is no alternate remedy available to the applicant. The applicant is not a mere wayfarer. He is a citizen of India and as a private relator also he is entitled to seek the remedy. He has a significant position in terms of the objects of the Consumer Protection Act. Therefore the allegation that he is a pawn in the hands of another disillusioned incumbent has no basis or substance. We do not find any mala fides in the application. The picture will be all the more clear when we analyse the facts of the case. Therefore no grounds are made out to non-suit the applicant in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India.
6. The crux of the allegations in this case is that the first respondent has not been duly appointed by the Government as a Member of the Kerala State Consumer Disputes Redressal Commission. The appointment is under the provisions of the Consumer Protection Act, 1986. Section 16 provides for the composition of the State Commission. The State Commission shall consist of the President and not less than two members. Under the Kerala Consumer Protection Rules, 2005, as per Rule 16 the State Commission shall consist of the President and four members. Section 16 reads as follows:
16. Composition of State Commission.--
(1) Each State Commission shall consist of;
(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President;
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court.
(b) not less than two, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:
(i) be not less than thirty-five years of age;
(ii) possess a bachelor''s degree from a recognised university; and
(iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:
Provided that not more than fifty per cent of the members shall be from amongst persons having a judicial background.
Explanation.-- For the purposes of this clause, the expression "persons having a judicial background" shall mean persons having knowledge and experience for at least a period of ten years as a Presiding Officer at the district level Court or any Tribunal at equivalent level.
Provided further that a person shall be disqualified for appointment as a member if he, --
(a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or
(b) is an undischarged insolvent;or
(c) is of unsound mind and stands so declared by a competent Court; or
(d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or
(e) has, in the opinion of the State Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or
(f) has such other disqualifications as may be prescribed by the State Government.
(1A) Every appointment under Sub-section (1) shall be made by the State Government on the recommendation of a Selection Committee consisting of the following members, namely:
(i) President of the State Commission:
Chairman;
(ii) Secretary of the Law Department of the
State : Member;
(iii) Secretary incharge of the Department dealing with Consumer Affairs in the
State: Member.
Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.
(1B)(i) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof.
(ii) A Bench may be constituted by the President with one or more members as the President may deem fit.
(iii) If the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it.
(2) The salary or honorarium and other allowances payable to, and the other terms and conditions of service of, the members of the State Commission shall be such as may be prescribed by the State Government.
Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the State Commission.
(3) Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven years, whichever is earlier:
Provided that a member shall be eligible for reappointment for another term of five years or up to the age of sixty-seven years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment mentioned in Clause (b) of Sub-section (1) and such reappointment is made on the basis of the recommendations of the Selection Committee:
Provided further that a person appointed as a President of the State Commission shall also be eligible for reappointment in the manner provided in Clause (a) of Sub-section (1) of this section:
Provided also that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in Sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of Sub-section (1A) in place of the person who has resigned.
(4) Notwithstanding anything contained in Sub-section (3), a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.
Rule 17 provides for the procedure to be followed in the matter of appointment of President and Members of the State Commission. The Rule reads as follows:
17. Appointment of whole-time members in the State Commission.-- (1) The President of the State Commission shall be appointed by the Government in consultation with the Chief Justice of the High Court of Kerala.
(2) Appropriate panel of candidates for consideration of appointment as judicial members to the State Commission shall be called for by the Department in charge of Consumer Affairs in Government from the High Court of Kerala.
(3) In the case of other members of the State Commission, appropriate panel of candidates for consideration of appointment shall be called for by the Department in charge of Consumer Affairs in Government from the concerned District Collectors and the District Collectors may, after due publicity, furnish a short listed panel of candidates, not exceeding three candidates per vacancy, with relevant documents and details to the Government after due verification and scrutiny of the qualification and other eligibility criteria prescribed in the Act and these Rules:
Provided that the Government (Department dealing with the Consumer Affairs) may, if necessary, advertise directly for the purpose:
Provided further that the panel so obtained, after further scrutiny and short-listing, shall be placed before the Selection Committee at the appropriate time by the convener of the Selection Committee. The Secretary to Government in charge of the Department dealing with Consumer Affairs in the State shall be the convener of the Selection Committee:
Provided also that the Selection Committee shall finalise a panel of candidates, by adopting such methods as the Selection Committee may deem fit, and the list of qualified candidates so finalised, shall be sent for consideration of appointment by the Government.
It can be seen from the mandate of Section 16 read with Rule 17 of the Kerala Rules that the Selection Committee has to finalise the panel of candidates and the list of qualified candidates so finalised shall be sent for consideration of appointment by the Government. That is the process of recommendation contemplated u/s 16. In other words, unless the Selection Committee finalises a panel of qualified candidates and recommends those candidates, the Government cannot make any appointment. The Government makes the appointment only from among the candidates recommended by the Selection Committee.
7. That the recommendation of the Selection Committee is mandatory for the Government to make appointments has also been settled by us in State of Kerala v. Reghu Varma 2009 (3) KLT 634 wherein it has been held at paragraph 7 as follows:
Once the Selection Committee recommends a list of qualified candidates, the appointing authority is free to appoint any candidate recommended by the Selection Committee. No doubt unless recommended by the Selection Committee, the appointing authority cannot make any appointment. In other words, the appointing authority, namely the Government, cannot appoint the candidate outside the list of qualified candidates furnished by the Selection Committee and only to that extent there is a fetter or restriction on the power and method of appointment of the President and Members of the various Forums under the Consumer Protection Act and its State Rules, on the Government.
Again at paragraph 9 the connotative meaning of the word ''recommendation'' as appearing u/s 16 has been considered and it has been held as follows:
From the context of the provisions of the Act and Rules, it is absolutely clear that the Selection Committee can only finalise a panel and forward a list of qualified candidates for appointment and the appointing authority is free to appoint any candidate from the list without assigning any reason. The appointing authority is not bound to show any reason for making the appointment, in case the appointment is as per the Scheme under the Act and Rules. In that view of the matter it is not necessary to advert to the various other decisions referred to by the learned Counsel appearing for the writ petitioners, particularly since all those decisions pertain to a fact situation where the appointing authority attempted to make appointment outside the list recommended by the Selection Committee. In the instant case the writ petitioners have no case that the appointees are not recommended by the Selection Committee.
Thus it is now settled law that a recommendation by the Selection Committee is a sine qua non for the Government to appoint a person as Member of the Kerala State Consumer Disputes Redressal Commission.
8. The first respondent herein is a party to Ext. P2 Division Bench Judgment of this Court in W.A. No. 968/2007. In the said judgment this Court has entered a categoric finding to the effect that the first respondent was not recommended by the Selection Committee. He was recommended only by the Chairman of the Committee. Paragraphs 9 and 10 of the judgment deal with the issue of appointment of the first respondent. For the sake of clarity it is necessary to extract those paragraphs, which read as follows:
9. We have perused the file closely and also the nothings made by the President at the bottom of the page which was not signed by the other two members. We are of the view that there is complete misreading of the files by the persons who have filed affidavits and statements before this Court. Learned Judge has also proceeded as if all the three members have unanimously recommended the name of the petitioner which is also factually incorrect. We shall extract the relevant portion of the selection committee minutes which would indicate that the writ petitioner Chandramohan Nair was recommended only by the Chairman of the Committee and not by the other two members of the Committee. Learned Judge proceeded as if all the three members have recommended the name of the petitioner which is factually incorrect going by the Selection Committee file. Relevant portion of the minutes is as follows:- The Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram Minutes of the Selection Committee meeting held on 2nd March 2006 at 3.00 P.M. in the chamber of Justice T.M. Hassan Pillai, President, Consumer Disputes Redressal Commission, Thiruvananthapuram. Present:
1. Justice Shri T.M. Hassan Pillai, President, Consumer Disputes Redressal Commission, Thiruvananthapuram (Chairman)
2. Shri.S.Sainudeen, Law Secretary, Government of Kerala, Thiruvananthapuram (Member)
3. Smt. Sheela Thomas, Secretary, Food, Civil Supplies & Consumer Affairs, Government of Kerala, Thiruvananthapuram (Member) The Committee conducted an interview of the following short-listed candidates for recommendation of suitable candidates for appointment as members to the Consumer Disputes Redressal Agencies noted against each:
No. Name Redressal Agency 1. Smt. Sheeja V.N. 2. Smt. Ravi Susha CDRF, Kollam 3. Smt. P.K.Syamala Devi 1. Smt. Geetha Sankar.L. 2. Smt. Savithri G. CDRF, Kottayam 1. Shri.N.Prem Kumar 2. Smt. Leena K.Subhash CDRF, 3. Smt. Lethika Bhai Pathanamthitta 1. Shri.K.T.Siddique 2. Shri.K.Ummer Kutty CDRF, 3. Shri B.Ummer Malappuram 1. Shri K.V.Thomas 2. Shri S.Chandramohan Nair 3. Smt. Valsala Sarangadharan 4. Smt. Rosamma Joseph CDRF, 5. ShriM.K.Abdulla Sona, Thiruvananthapuram
The interview is for the following posts:
1. Consumer Disputes Redressal Forum,
Kollam (Woman Member) - 1
2. Consumer Disputes Redressal Forum
Kottayam (Woman Member) - 1
3. Consumer Disputes Redressal Forum,
Pathanamthitta (Member) - 1
4. Consumer Disputes Redressal Forum,
Malappuram (Member) - 1; and
5. Consumer Disputes Redressal Commission,
Thiruvananthapuram (Members) - 2
xx xx xx xx
v. Consumer Disputes Redressal Commission,
Thiruvananthapuram.
Secretary-Law and Secretary-Consumer Affairs suggested the following names for inclusion in the panel for selection of member to the Consumer Disputes Redressal Commission:
1. Smt. Valsala Sarangadharan
2. Shri. K.V. Thomas
As per Section 16(1)(b) of the Consumer Protection Act, 1986 apart from age and educational qualification, persons to be appointed as members of the State Commission be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration.
The members concluded that Smt. Valsala Sarangadharan and Shri K.V. Thomas performed satisfactorily in the interview and from their C.V. also it is seen that they have the requisite qualification for appointment to the post of member, State Commission. Smt. Valsala Sarangadharan has experience in the field of law and K.V. Thomas has long experience in administration. Hence they are recommended from among the four persons interviewed for selection to the post of member, State Commission.
The Chairman of the Committee, President, State C.D.R.C. dissented to this recommendation and recommended inclusion of Shri S. Chandramohan Nair and Smt. Valsala Sarangadharan in the panel and exclusion of Shri K.V. Thomas from the panel for the following reasons.
Above mentioned portions would indicate that Law Secretary as well as the Secretary, Food, Civil Supplies and Consumer Affairs had recommended the name of Smt. Valsala Sarangadharan and Shri K.V. Thomas and not Chandramohan Nair. Only the Chairman had recommended the name of Chandramohan Nair and also recommended the name of Smt. Valsala Sarangadharan. True, page 5 of the minutes of the Chairman reads as follows:
I recommend the following persons to be appointed as the members of the State Commission.
1. Shri.S.Chandramohan Nair
2. Smt. Valsala Sarangadharan
1. Justice Shri.T.M. Hassan Pillai,
President Sd/-
2. Shri. S. Sainudeen, Law Secretary
Sd/-
3. Smt. Sheela Thomas, Secretary,
Food, Civil Supplies and
Consumer Affairs Sd/-
Reading the entire minutes as a whole, it is clear that the signature of the members including that of the Chairman affirms what has been minuted. Hence the Chairman of the Selection Committee recommended only the name of Chandramohan Nair and Smt. Valsala Sarangadharan. Later the Chairman himself has incorporated the following in the minutes which has not been signed by other two members.
Really what transpired at the Selection Committee Meeting held on 2nd March 2006 was that there was no difference of opinion among the President and the Members of the Selection Committee for including the name of Sri. Chandramohan Nair. The only difference of opinion was regarding the inclusion of name of Sri. K.V. Thomas in the panel.
Reading the minutes as a whole, it is seen that the above quoted portion does not reflect the correct position. First quoted portion of the minutes would clearly show that the Law Secretary as well as the Secretary, Food, Civil Supplies and Consumer Affairs had recommended the names of Smt. Valsala Sarangadharan and Sri. K.V. Thomas and not Sri. S. Chandramohan Nair, though in the last portion of the minutes all of them had signed it. Reading the minutes as a whole, we are of the view that the name of S.Chandramohan Nair was not unanimously recommended by the members of the Selection Committee but only by the Chairman of the Committee. Therefore, the direction given by the learned single judge on the ground that there was unanimous recommendation to appoint S. Chandramohan Nair is not correct.
10. The Government have now considered the name of S. Chandramohan Nair, whose name was recommended by the President of the Committee alone and he has been appointed as a member of the Commission by the Government as per notification dated 25-06-2007 which is not under challenge in these proceedings. We therefore express no opinion about the legality of the appointment of S. Chandramohan Nair.
9. As we have already noted above, the first respondent herein is a party to Ext. P2 judgment in W.A. No. 968/2007. A Division Bench of this Court has entered a specific finding to the effect that the Selection Committee has not recommended him for enabling the Government to make the appointment as Member of the State Commission. That judgment has become final. Having suffered such a finding in the judgment, we do not think that we should go into any further details of the case, since we do not find any materials to take a different view on facts. The emerging factual position is that the first respondent has not satisfied the mandatory requirement of recommendation by the Selection Committee. Therefore, the appointment of the first respondent is outside the list recommended by the Selection Committee, which is impermissible under law. The first respondent has not fulfilled the required qualification of being appointed as the Member of the Kerala State Consumer Disputes Redressal Commission. Thus he does not have the right to hold and continue the said office. Therefore, a writ of quo warranto is liable to be issued. Ordered accordingly.
The writ petition is allowed as above.
