Aniruddha Bose, J. - (1.) THIS appeal arises out of a judgement and order passed by a learned Single Judge of this Court on 23rd September, 2011 in W.P. No. 1052 of 2011, issuing a Writ of quo-warranto directing Shri N.P. Pillai, respondent no.7 in the writ petition to relinquish the post to which he was appointed. Said N.P. Pillai has been impleaded as the proforma respondent before us. The appointment, which was challenged before the learned First Court was effected on 29th April, 2011, was as Consultant(Finance). The learned First Court also directed that all acts and deeds done by him shall be rendered void. The order, being Order No.40 was signed by the Pay & Accounts Officer-IV and this order recorded that the Lieutenant Governor, A & N Islands had been pleased to order such engagement. It was also recorded in the order that such engagement was being made initially for a period of six months or till the post of Director (Finance) was filled up on regular basis, whichever was earlier, in public interest.
(2.) THE petitioners before the learned First Court were an association, being the Staff Council, Chief Pay & Accounts Organization, the President and Vice-President of the said Organization and five employees of the accounts departments of different public authorities in Port Blair. It has been pleaded in the writ petition that the petitioner nos.4 and 5 were eligible for the said post to which the proforma respondent had been engaged. THE basic complaint of the petitioners is that such appointment was not in terms of Rule 168(1) of the General Financial Rules which deals with appointment of Consultants under the Central Government. We shall henceforth refer to these rules as GFR. Rule 163 of the GFR empowers the Ministries or departments to hire external consultancy firms and consultants for a specific job and Rule 165 stipulates that engagement of such consultant may be deserved to any situation requiring high quality service for which the concerned Ministry/department does not have the requisite expertise. Rule 168(i) stipulates:- "Rule 168. Identification of likely sources. - (i) Where the estimated cost of the work or service is upto Rupees twenty-five lakhs, preparation of a long list of potential consultants may be done on the basis of formal or informal enquiries from other Ministries or Departments or Organisations involved in similar activities, Chambers of Commerce & Industry, Association of consultancy firms et." The proforma respondent had retired from the post of Director of Accounts & Budget of the Administration on 30th April, 2011. He was engaged as a Consultant(Finance) with effect from 1st May, 2011, initially up to 31st October, 2011. Learned First Court found breach of the provisions of the GFR as engagement of the proforma respondent was not in accordance with the provisions of Rule 168. It is admitted position that he was not engaged from any existing list of potential Consultants on the basis of formal or informal inquiries from the various sources specified in the said provision i.e. Rule 168(i). This is the main ground on which his appointment was quashed. The appellants before us are Union of India and the different authorities of Andaman and Nicobar Administration. Mr. Tabraiz, learned counsel for the appellants has urged us to set aside the judgement under appeal on the ground that the petitioners did not have the locus standi to maintain the writ petition. His contention is that temporary appointment of a superannuated officer as a Consultant does not constitute appointment to any public or civil post and Writ of quo warranto does not lie in respect of engagement to the post of Consultant as such engagement is not done on the basis of any statutory rule. So far as GFR is concerned, he submitted that this is a mere administrative or executive guideline, not having any statutory strength and appointment made following such guidelines would not constitute appointment to any statutory post. The second limb of his argument is that such appointment was not made in accordance with Rule 168(1) but under Rule 176, which stipulates:- "Rule 176. Consultancy by nomination. - Under some special circumstances, it may become necessary to select a particular consultant where adequate justification is available for such single-source selection in the context of the overall interest of the Ministry or Department. Full justification for single source selection should be recorded in the file and approval of the competent authority obtained before resorting to such single-source selection."
(3.) HE also submitted that this was only a temporary appointment to meet the exigencies of situation and the Administration had already approached the Union Public Service Commission for filling up the post of Director(Finance). HE also argued that subsequent to his initial appointment, an order extending his engagement has been passed but this order of extension has not been challenged and the original order of his engagement has lost its force and this ground dismissal of the writ petition ought to have been made. Mr. Tabraiz also submitted, on instruction that the authorities are also not likely to extend his engagement after the expiry of the present term and the post of Director(Finance) is likely to be filled up through regular channel either by way of deputation or on contract basis and such engagement shall be done through an open selection process by way of advertisement. His further submission on this count is that in the event a consultant is required to be engaged in the post the proforma respondent is holding, then such post would be advertised. HE relied on a note relating to appointment of Shri Pillai to justify the exercise of special power under Rule 176. This note records:- "This is regarding appointment of Consultant (Finance) under A & N Administration. In this regard, it is submitted that, Shri N.P.Pillai, Director(Finance)/Director of Accounts & Budget is retiring on attaining the age of superannuation w.e.f. 30.04.2011(A/N) after rendering more than 36 years of service under A & N Administration. HE is looking after the full duties of the post of Director(Fin.) in addition to his normal duties since 2005 onwards. The Finance department looks after the financial matters of A & N Administration. The proposals which require the financial concurrence are being routed through Director(Finance) to the Principal Secretary(Finance). Therefore till a suitable person is appointed as Director (Finance) by A & N Administration, the services of Shri N.P.Pillai may be utilized in public interest. In terms of Rule 165 of GFR, 2005 engagement of consultants can be resorted to in situations requiring high quality services for which the concerned ministry does not have requisite expertise. Further as per Rule 167 of GFR, 2005, Ministry or department proposing to engage consultant should estimate reasonable expenditure for the same by ascertaining the prevalent market conditions and consulting other organizations engaged in similar activities. Therefore, it is proposed to engage Shri N.P. Pillai, Director of Accounts & Budget "Consultant(Finance)" against the vacant post of Director(Finance) on a consolidated remuneration of Rs. 28,400/-(Rupees twenty eight thousand four hundred only) (Calculation of remuneration is at Flag ?A?) subject to the condition that the fee plus pension dearness pension should not exceed the last pay drawn, for a period of six months w.e.f 01/05/2011 to 31/10/2011 or till the post is filled on regular basis whichever is earlier subject to a review after six months in public interest. HE will not however be entitled for any other benefits including residential accommodation during the period of engagement. The post of DAB, A & N Administration is to be filled up by promotion in consultation with UPSC, New Delhi. A proposal to take up the case with UPSC is being put up in a separate file and till the post is filled up on regular basis the senior most Senior Accounts Officer if this organisation will be given the charges of DAB in addition to his own duties without any extra remuneration. A proposal in this regard will be put up separately." He has also questioned the legality of the order to the extent all acts done by the proforma respondent has been directed to be rendered void. Relying on a judgement of this Court in the case of Puranlal Lakhanpal -Vs.- Dr. P.C. Ghosh and others (AIR 1970 Cal 118), he submitted that invalidation of all acts done by him ought not to have been directed. On behalf of the writ petitioners/respondents, Ms. Anjili Nag argued in support of the judgement. Her case is that the plea of exercise of power under Rule 176 was an afterthought and never taken before the learned First Court. Her further submission on the point of maintainability of an action for quo warranto is that what was sought to be done by the Administration in this case was to engage the proforma respondent in the post of Director(Finance) only. The post of Director (Finance) is a civil post and the entire exercise of engaging a Consultant was to camouflage the appointment of the proforma respondent as Director(Finance) which would not have been permissible under the Fundamental Rules 56. He would have been disentitled to be engaged on his retirement under the said Rules. Her alternative submission on the point of statutory force of GFR is that the original Finance Rules were adopted in the year 1947 and there was modification to such rules in the year 1963 and the present Rules i.e. General Financial Rules, 2005 is also a further modification and hence is protected under Article 313 of the Constitution.;