Om Prakash Trivedi, J. - (1.) This petition under Article 226 of the Constitution of India has been filed by Krishna Swarup Gupta, who is an Assistant Secretary to the Uttar Pradesh Government (Judicial) and is at present posted as officer-trainee Assistant Collector and Magistrate at Basti.
(2.) The admitted facts are these : In May, 1942 the Petitioner was confirmed to the post of Upper Division Assistant in the U.P. Secretariat. In 1951 he was appointed an officiating Superintendent in a clear vacancy and by a selection held in 1957 he was confirmed as a Superintendent in the U.P. Secretariat Service. In 1961 by another selection under the U.P. Secretariat Service Rules, 1942 he was selected by the Public Service Commission and was approved for appointment in temporary and officiating vacancies as Assistant Secretary and his name was put on the select list. On November 5, 1961 he was promoted as Assistant Secretary and worked as such till March 1967. In June, 1967 he was selected as an officer-trainee and posted at Basti where he took over charge in July, 1967. In 1967 steps were taken for selection of candidates for filling substantive and temporary vacancies of Assistant Secretaries. Under Rule 8 (1) (i) of the U.P. Secretariat Service Rules, 1942 a list of ten persons was drawn up for filling five substantive vacancies. This list was sent under rule 8 (1) (iii) of the said Rules to the Public Service Commission, opposite party No. 4 of the petition along with the Gradation list and Character Rolls of all eligible officers. The list was returned by the Commission to the appointing authority, in this case opposite party No. 2, and in accordance with rule 8 (1) (iii) September 19, 20 and 21, 1967 were fixed for interview of the candidates by a selection committee consisting of the Chairman of the Public Service Commission the Chief Secretary and the Secretary to Government in Public Works Department viz., opposite parties Nos. 3, 5 and 6 to the petition. The petitioner was also called for interview before this Committee. Dr. Rama Dhar Misra was appointed a Member of the Public Service Commission by the Governor of Uttar Pradesh on 21-7-1961 by a notification which was published in the Uttar Pradesh Gazette of August 5, 1961 and he took charge of this office in the forenoon of August 5, 1961. It is submitted that under Article 316 (2) of the Constitution of India the maximum term of office of the Chairman and other Member of the Public Service Commission is only six years and the term of office of Dr. Rama Dhar Misra as Chairman of the U.P. Public Service Commission expired on 4-8-1967. The Petitioner's contention is that Dr. Rama Dhar Misra ceased to be a Member or chairman of the said Commission on 4-8-1967 and yet he sat on the Selection Committee in the capacity of a Chairman of the Commission for the interviews held on September 19, 20 and 21, 1967. The petitioner challenges validity of proceedings of the Selection Committee as null and void firstly on the ground of participation of Dr. Rama Dhar Misra when he was not in fact a Member or Chairman of the Public Service Commission. This according to the Petitioner vitiated the entire proceedings of the Selection Committee held on September 19, 20 and 21, 1967. It is an admitted fact that just before the date fixed for interviews by the Selection Committee Government decided to increase the number of vacancies to be filled substantively from 5 to 15. As a result of the interviews by the Committee opposite parties Nos. 8 to 25 were selected out of whom opposite parties Nos. 8, 13 and 22 were confirmed as Assistant Secretaries opposite parties Nos. 14 to 19 were appointed Assistant Secretaries on probation and opposite parties Nos. 20, 21 and 23 to 25 were appointed temporary Assistant Secretaries. The petitioner was not selected for confirmation in the interview by the said Selection Committee. It was further admitted that on 25-10-1967 the petitioner received copy of a G.O. dated 21-10-1967 by Sri N. S. Mathur Deputy Secretary to Government, Uttar Pradesh addressed to the Accountant General U.P. Containing the advice that the petitioner's position having undergone a change, instead of his existing pay scale of Rs. 800-950 a revised pay slip in the scale of Rs. 515-40-715 be issued (vide annexure 1 to the writ petition). No formal order of reversion of the petitioner admittedly was ever issued. The petitioner maintains that the G.O. of 21-10-1967 amounts to an order of reduction in rank. The second ground of attack in the petition against this order of 21-10-1967 is that the interviews by the Selection Committee on September 19, 20 and 21, 1967 were held in violation and disregard of the provisions contained in rules 8(1)(i) and 8(1)(iii) of the U.P. Secretariat Service Rules and the Petitioner maintains that there are mandatory provisions. It is further pleaded that the proceedings of the Selection Committee were vitiated also by the fact that the revised list of 30 candidates was drawn up by Government in an arbitrary manner without any preliminary selection by the Selection Committee in breach of rule 8 (1) (i) of the aforesaid Rules. On these facts and allegations the petitioners prays for a writ of certiorari quashing the interviews held on September 19, 20 and 21, 1967 by the Selection Committee and the appointments of opposite parties Nos. 8 to 25 as a result of the impugned selection. The petitioner further prays for quashing of the G.O. dated 21-10-1967 contained in Annexure 1 to the petition and for the issue of any such other order. direction or writ as may be considered just and proper in the circumstances of the case.
(3.) The first and foremost question and which we think is also by far the most important is whether the proceedings of the Selection Committee held on September 19, 20 and 21, 1967 were null and void because as alleged Dr Rama Dhar Misra had no right to sit in the Selection Committee he having ceased to be a Member or Chairman of the Public Service Commission by that time. In the supplementary counter affidavit dated January, 4, 1969 sworn by Sri G. S. Misra the petitioner's contention that Dr. Rama Dhar Misra was appointed a Member of the Public Service Commission by the Governor on 31-7-1961 and that he took charge of that office in the forenoon of August 5, 1961 is admitted. It is further admitted that the term of office of Dr. Rama Dhar Misra expired on 4-8-1967. Art. 316(2) of the Constitution of India lays down. "A member of a Public Service Commission shall hold office for a term of Six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of sixty years. whichever is earlier." Upon the admitted facts therefore in the light of Article 316 (2) the term of office of Dr. Rama Dhar Misra came to an end on 4-8-1967 when consequently he ceased also, to be a chairman of the Public Service Commission. Under the rules it is Chairman of the State Public Service Commission who is entitled to be on the Selection Committee. On the face of it therefore Dr. Rama Dhar Misra did not possess any legal right to sit on the Selection Committee which interviewed the petitioner and the aforesaid opposite parties on September 19, 20 and 21, 1967. The stand taken for the state in defence of proceedings of the Selection Committee and appointments of the contesting opposite parties is that even after the expiry of his term on 4-8-1967 Dr. Rama Dhar Misra continued the functions as Chairman of the Public Service Commission and as such he was a de facto Chairman of the Commission and took his seat in the Selection Committee in that capacity. They further raised the plea that in any case the de facto character of Dr. Rama Dhar Misra is not open to challenge in the present proceedings which according to them are collateral in character and it is maintained that they can be challenged only in direct such as quo warranto proceedings. On the admitted facts therefore the main question which falls for determination is what is the doctrine of de facto and whether this doctrine could be invoked in favour of the participation of Dr. Rama Dhar Misra in the Selection Committee. We have heard arguments of Sri K. S. Verma, the learned Chief Standing Counsel and S. L. Verma, appearing for the petitioner. The learned Chief Standing Counsel Places his reliance mainly on a Full Bench decision of this court in the case of Jai Kumar v. State, 1968 ALJ 877 which we shall presently examine to see how far it helps the opposite parties. The doctirne of de facto has been imported from American Jurisprudence Colley in Constitutional Limitation, at page 1355 says : "An officer de facto is one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact. His colour of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it, or made in such disregard of legal requirements as to be infactual in law, or made to fill the place of an officer illegally removed, or made in favour of a party not having the legal qualifications or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people without inquiry to submit to or invoke official action on the supposition that the person claiming the office what he assumes to be." (Italicised is ours) This de facto doctrine adumbrated here was recognised by this court in the Full Bench case of Jai Kumar v. State, 1968 ALJ 877 and it is plain that it can be. invoked in favour of an officer who is in possession of a public office by some colour of right or was holding over at the revelant time under claim bright after his legal right had terminated. In the present case the colour of right of Dr. Rama Dhar Misra to be a Member or Chairman of the Public Service Commission had come to an end to borrow the pharseology of the majority judgment in the case of Jai Kumar, had been exposed when his term of office came to an end on 4-8-1967. That being so it cannot be maintained that he was participating in the Selection Committee by some colour of right. He was no doubt, according to the contention raised for the state, holding over but mere holding over could not invest him with de facto character unless such holding over was under claim of right after his legal right had terminated on 4-8-1967. There is no trace of a suggestion on behalf of the State or the opposite parties that after the expiry of his term on 4-8-1967 Dr. Rama Dhar Misra was continuing to act as Chairman of the Public Service Commission under a claim of right or in other words that he was asserting any claim or right, to that office at the time of his participation in the Selection Committee. That being so, the various conditions envisaged in the aforesaid definition given by Colley are non-existent in this case. All that can be predicated of Dr. Rama Dhar Misra is simply this that he was in possession of the impugned office at the time of his participation in the Selection Committee, but mere possession of office may amount to rank trespass or usurpation and could not invest him with a de facto charecter. Indeed Colley in Constitutional Limitations at page 1357 says : "An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of Public acquiescence." In the present case the term of office of Dr. Rama Dhar Misra having come to an end on 4-8-1967 he was clearly holding office at the relevant time without the authority of law and there is no suggestion much less indication that he possessed the backing of public acquiescence. In Colley's Constitutional Limitations at page 1358 is cited a case, Edern v. Mc. Govern, 154 Wis 157, 142 N.W. 595, 46 L.R.A. (N.S.) 706 . In that case a person holding over after the expiration of the terra for which he was elected or appointed although in possession of the office in good faith, was held not to be a de facto officer as to be entitled to equitable protection in his possession as against a person who shall have been, in due course. certified to have been elected or appointed his successor in the particular office. We therefore hold that the de facto doctrine is not available to the state in defence of the status of Dr. Rama Dhar Misra with regard to his participation in the Selection Committee for we cannot but hold that after 4-8-1967 and at the time of his participation in the Selection Committee he was acting as Chairman of the Public Service Commission without the authority of law and without any colour of right. His possession therefore cannot be better than that of an intruder or rank usurper of office and cannot therefore be countenanced under any principle in law. In the case of Jai Kumar v. State certain orders of convictions and sentences were challenged in criminal revisions on the ground amongst other that in view of the decision of the Supreme Court in the case of Chandra Mohan v. U.P. State, 1966 ALJ 778 holding the U.P. Higher Judicial Service Rules as unconstitutional in the absence of a real and effective consultation with High Court the appointments of certain Munsifs, Civil Judges, Assistant Sessions Judge and the Sessions Judge were invalid and therefore the impugned convictions and sentences were null and void. On behalf of the State it was urged that the legality of appointment of the Judicial Officer concerned could not be subjected to a collateral attack in an appeal or revision from their orders inasmuch as the same could be dial slenged only in direct proceedings such as writ of quo warranto or a suit to which an officer was a party and that the officers having held a de facto character their orders were binding unless held to be invalid in such direct proceedings. Dwivedi, J., speaking for the court in the majority judgment held that the de facto character of the officers concerned had not been exposed by the relevant time and consequently their orders could not be challenged in collateral proceedings like an appeal or revision. The fact which distinguishes this decision from the present one to our mind is that the colour of office of Dr. Rama Dhar Misra had been exposed on 4-8-1967 after the cessation of term of his office. Consequently, on this authority cannot be persuaded to hold that Dr. Rama Dhar Misra was acting as Chairman of the Public Service Commission at the time of his participation in the Selection Committee in a de facto character. Having come to the conclusion that the character of Dr. Rama Dhar Misra at the relevant time was not de facto the ancillary question whether this character could be challenged in the present proceedings does not arise at all. The question whether the present case be regarded as collateral and can be challenged before us in this petition could have arisen only if we had accepted the opposite parties contention that he was acting as chairman of the Public Service Commission in a de facto character.;