- (1.) THIS is a writ petition for a writ of quo warranto for ousting the respondent No 2 Shri Onkarjal Manaria from the post of a Senior Research Assistant in the Rajasthan Oriental Research Institute, Jodhpur.
(2.) THE question raised appeared to be a simple one to start with, but it is not free from its own complications. THE respondent Shri Manaria came to be first appointed as a Senior Research Assistant in the scale of Rs. 250-15-400 EB 25-600 by Government order dated 2-8-61, which ran as follows - " GOVERNMENT OF RAJASTHAn Education (B) Department From THE Assistant Secretary to the Govt. of Rajasthan, Jaipur. To THE Hony. Director, Rajasthan Oriental Research Institute. Jodbhpur. Sub:-Appointment of a Research Assistant. Ref:your memo No. F. 3/estt/rort/61/jpr/150 dated 28-7-1961. I am directed to convey sanction of the Governor to the temporary appointment of Shri Onkarlal Menaria, M. A. , against the post of Senior Research Assistant in the scale of 250-15-400-EB-25-600, created under item II (i) of this Department order No F. 2 (s9) Edu/c/6l Gr. I dated 23-5-61, for a period of 6 months in the first instance or till a candidate selected by the Rajasthan Public Service Commission joins, whichever is earlier. Sd/- Assistant Secretary to Government. " THE petitioner's case in seeking a writ of quo warranto, in short, is that after the expiry of the period of six months in terms of the above order there was no valid order of further appointment in favour of Shri Manaria or for that matter extending the period of his appointment. THE petitioner further took the stand that when Shri Manari was appointed he did not fulfil the qualifications for the post. THE position continued like this even till the Governor constituted the Rajasthan Oriental Research Institute Service in 1967 and the Rajasthan Oriental Research Institute Service Rules, 1966, hereinafter to be referred as the Rules, were first published in the Raj. Rajpatra on 24-1-67. THE petitioner further avers that the post of Director, Oriental Research was abolished by the Government on 24-3-70 and when the Screening Committee met to consider the cases of such of the employees who would be fixed up in accordance with the Rules it included the Director of Sanskrit Education instead of the Director of Oriental Research wish the result that the proceedings of the Selection Committee stood vitiated. THE respondent came to be appointed on 19-7-71 as Senior Research Assistant on the recommendation of a committee which was not properly constituted. THE order of appointment dated 19 7-71 runs as follows Varnacular Text According to the petitioner, therefore, respondent Shri Manaria had no valid title to hold the post of Senior Research Assistant both when he was first appointed in temporary capacity or till the rules came to be made or thereafter in accordance with the rules. By way of parenthesis I may add here that when the writ petition was first filed in 1968 the petitioner had challenged the first appointment of Shri Manaria as well as his continuance on the posts of Senior Research Assistant, but subsequently when the respondents produced certain orders as well as pleaded certain amendments in the Rules, the petitioner amended his writ petition with the leave of the Court and it is the amended writ petition that I am dealing with. The writ petition has been opposed by the Director as well as Shri Manaria. They denied that the first appointment of Shri Manaria in temporary capacity was invalid or that subsequently there was no order for continuing Shri Manaria on the post. It is also denied that the Screening Committee was not properly constituted for the reason that there was no Director in the Oriental Research Department. The respondents took the stand that with the merger of the Institute with the Directorate of Sanskrit Education, The Director of Sanskrit Education ipsofacto become the Director of Oriental Research, as by the merger the identity of the Oriental Research was not lost altogether. It is further pointed out that by virtue of proviso (c) to R. 6 of the Rules, Shri Manaria continued as Senior Research Assistant and thereafter he was validly appointed on the recommendation of the Screening Committee. I may first deal with the various orders in the light of which the matter falls to be considered and may then notice the relevant rules. I have already reproduced the first order of appointment of Shri Manaria as also the last order of his appointment dated 19-7-71 made on the recommendations of the Screening Committee. Order Ex. A/1 dated 23-5-61 contains the Governor's sanction to the creation of the post of Senior Research Assistant and other posts in the Department of Oriental Research. I may read this order, as it will have to be considered whether Shri Manaria fulfilled the qualification "government OF RAJASTHAn Education (C) Department Order No. F. 2 (19) Edu/c/61/cr: i Dated Jaipur, 23rd May '61 Sub:creation of posts. The Governor has been pleased to accord sanction to the creation of the following posts from 1st March 19bl or from the date the new posts are filled in, whichever is later, in the pay scale noted against them with the usual allowances in connection with the following schemes to be run under the Rajasthan Oriental Research Institute Jodbpur upto end of February, 1962. S. No. Name of Scheme Posts No. of posts Remarks 1. Scheme for preservation and publication of rare manuscripts of national importance lying in the Bhandars of Jain Temples at Jaisalmer. (i) Research Asstt. (Senior) (250- 15-400-EB- 25-600)* (i) This grade will be admissible to persons possessing qualification as 2nd Class M. A. in History with papers in ancient or Medieval Indian History having Hindi in B. A or with research experience to be given preference. (ii) Class IV servants (25-1-40) Other combined Schemes for Survey, Purchase and Preservation of Mss. Research in old Rajasthani Literature etc (i) Research Asstt. (Senior) (250-15-400-EB-25 600)This grade will be admissible to persons possessing qualification as 2nd Class M. A. in History with paper in ancient or Medieval Indian History. Hindi in B A. or with research experience to be given perference. (ii) Surveyors (15010-220- EB-10-250-12-1/2-300) (iii) Copyists (90-5-130) ( (iv) Class IV servants (25-1-40) Notethe posts of 8 Surveyors and 8 Class IV servants are for branch Offices at Jaipur, Chittor, Bikaner and Sirohi (Abu) Udaipur, Kotah, Tonk, Alwar and will be filled when the number of manuscripts collected at each of the above places reaches 5,000. The expenditure will be charged to the head 37 Education- D-Spl-VI (ii) Rajasthan Oriental Research Institute and 56-Printing & Stationary (Plan exp.) respectively. This issues with the concurrence of F. D. vide U. O I. D. 2180 F. D. dated 10-5-61. By order, Asstt. Secretary to Govt. " By order dated 5-3-62 the above order was modified. The qualifications prescribed for the post of Senior Research Assistant under Scheme No. 1 were modified and it was provided that the qualification would be M. A. Second Class in Sanskrit, Hindi or both with three years experience of work in a Research Institute, or Acharya (Jaipur, Benares) and B. A. with experience as above. Further regarding the qualifications against item (ii) in Order Ex. A/1, the word "preferably" was to be inserted between the word 'history' and 'with' in the fourth line of the paragraph of qualifications of Research Assistant under Scheme No. II namely, other combined Schemes for Survey, Purchase and Preservation of miscellaneous research in old Rajasthan Literature. The amendment was made with the concurrence of the Finance Department. Therefore, as a result of this modification the qualifications stood as Second Class M. A. in History preferably with papers in ancient or medieval Indian History In other words, the requirement of having a paper in ancient and medieval History no longer remained a necessory qualification though it would be a matter for preference. By order dated 27-7 62 (Ex. A/7) the Governor sanctioned the payment of salary on provisional basis upto 30 6-62 to Shri Manaria and others who were appointed temporarily. By orders Ex. A/8, Ex. A/9, Ex A/10, Ex. A/11, Ex. A/12, Ex. A/13, Ex. A/14, Ex. A/15, Ex. A/16, Ex. A/19, Ex A/20, Ex. A/21, Ex. A/22, Ex. A/23, Ex. A/24, Ex. A/25 and Ex. A/26 sanction for payment of salary was accorded from time to time. I may read the last order Ex. A/26. Varnacular Text It is mentioned in the above order that Shri Manaria had already been selected by the Screeing Committee and his case has to be sent to the Public Service Commission. As regards the merger of the Directorate of Oriental Research with the Directorate of Sanskrit Education as also for the abolition of the post of Director the Government passed the order Ex. M. on 24-3-70. This order runs as follows "government OF RAJASTHAn Education (Cell-I) Department F. 7 (17) Edu/cell-I/69 Dated Jaipur, the 24th March, 1970 Order Sub:economy in expenditure 1969-70 measures. In order to effect economy in expenditure, the Governor has been pleased to order that the posts noted against the various Departments be abolished with immediate effect. Name of Deptt. Name of Post and Scale No. of Posts abolished The Directorate of Raj. O. R. I , Jodhpur is abolished and merged with the Directorate of Sanskrit Education. The office of the Institute will continue at Jodhpur and the Dy. Director will work under the Director of Sanskrit Education. 2. Rajasthan Oriental Research Institute. (i) Director (26) one (ii) Four sub-office at Tonk, Chittorgarh. Alwar & Kota are to be closed and records lying there be shifted to the offices at Udaipur and Jaipur. (a) Surveyors (13) Four (b) Class IV servants (1) Four As a result of abolition of the above noted posts the incumbents working against them who are permanent employment may be reverted to their substantive posts and temporary ones may be declared surplus and action taken in accordance with the Absorption Rules. A new unit under the name of "state (Council of educational Research Training" will be formed under the Director of State Institute of Education at Udaipur. The remaining staff of the existing four units will be transferred to this unit. The Officer staff brought under reduction will hand over charge to their next subordinate available. Necessary orders may please be issued immediately from your department for posting/declaring surplus etc. under intimation to this Department. The B. Es. 1970-71 have already been finalised. It is, therefore, requested that the actual economy likely to be affected under each head may also please be intimated immediately to this Department in the proforma enclosed. This issues with the concurrence of the Financ Department vide their No. I. D. 746/ FD (Exp.-I)/70 dated 10-3-70. Sd/- Secretary to the Govt. " I may here make a mention of the fact that the Government passed an order on 29-3 73 (Ex. C/l) ordering that the order Ex. A/2 shall be deemed to have come into force with effect from 23-5-61, that is, when the order Ex. A/1 was passed. On 29-3-73, Government passed another order by which they made certain additions to the order dated 24-3-70 (Ex. M), this order runs as follows - " GOVERNMENT OF RAJASTHAn Education (Group-IV) Department No. F. 6 (3; Edu-4/67 Dated 29th March, 1973. Adenda The following may be added to in the last Para of item No. 1 of order No. F. 7 (17) Edu/ Cell-I/69 dated the 24th March, 1970: " The Director of Sanskrit Education will perform the duties of the Director, Rajasthan Oriental Research Institute Jodhpur till the post of Director, Rajasthan Oriental Research Institute is revived and filled up. " The above addition shall be deemed to have come into force with effect from 24-3-1970. By order of the Governor, Sd/- (Mohinder Singh) Commr & Secretary to Govt. " Now I may turn to the Rules. To start with I may notice that when the respondent Shri Manaria was first appointed there were no statutory rules and the matter was dealt with under executive orders of the Government. R. 2 is the definition clause and I may here notice the definition of the term "director", as it will have to be considerred in dealing with the composition of the Selection Comm. The term "director" means the Director, Oriental Research Institute, Rajasthan. Part II of the Rules deals with the Cadre. R 4 thereunder provides that the nature of posts included in each category of the service shall be as specified in column 2 of the Schedule and further the strength of posts in each category shall be such, as may be determined by the Government, from time to time, provided that Government may (a) create any post, permanent or temporary, from time to time, as may be found necessary; and (b) leave unfilled or hold in abeyance or abolish or allow to lapse any post, permanent or temporary from time to time, without thereby entitling any person to any compensation. R. 5 in about the Initial Constitution of the Service and this I may read in full "r. 5. Initial Constitution of the Service The service shall consist of (a) Persons holding substantively the posts specified in the Schedule; (b) persons recruited to the service before the commencement of these rules; and (c) persons recruited to the Service in accordance with the provisions of these rules. " R. 6 is about the methods of recruitment and as the proviso (c) which was subsequently inserted in 1968 falls to be considered, I may read R. 6 including all the three provisos "r. 6. Methods of Recruitmentrecruitment to the Service after the commencement of these rules shall be by the following methods, namely (1) direct recruitment in accordance with Part IV of these rules ; and (2) promotion in accordance with Part V of these rules; Provided (a) that if Government is satisfied. in consultation with the Commission, that suitable persons are not available for appointment by other method of recruitment in a particular year, appointment by the other method in relaxation of the prescribed proportion, may be made in the same manner as specified in these rules; Notethe proviso (a) shall not apply to the post of Director, Rajasthan Oriental Research Institute, Rajasthan. (b) that nothing in these rules shall preclude Government from Appointing Officers previously in the employment of pre-reorganisation State of Ajmer, Bombay and Madhya Bharat to suitable posts in the Schedule in accordance with the rules governing the integration of their service. (c) That persons who have for a period of one year as on 1-1-1963 continuously held the post in the relevant groups included in the Service in an ad hoc, officiating/temporary capacity shall be screened by a Committee referred to in R. 24,2) (a) of these rules for their suitability to be appointed to (1) posts held in the above capacity on 1-1-1963 or any other equivalent posts or lower posts if the incumbent desires to be selected for such lower posts. (2) for the purpose of such selection, these persons may be required to possess the qualifications prescribed in the rules for either direct recruitment of promotions or the prescribed qualifications on the basis of which these persons were selected for ad hoc, officiating/temporary appointment. " R. 11 prescribes academic qualifications and experience for a candidate for direct recruitment to the posts specified in the Schedule. It is mentioned therein that the candidate shall possess the prescribed qualifications besides the experience as required; they are qualifications given in column 4 of the Schedule and working knowledge of Hindi written in Devnagri script and one of Rajasthani dialects. Direct recruitment is through the Public Service Commission. Part V deals with the procedure for recruitment by promotion. 1 may read R. 24, as the selection committee contemplated under R 6 (c) has to proceed in the manner laid down by R. 24 "r. 24 Procedure for selection (1) As soon as it is decided that a certain number of posts shall be filled by promotion, the Director shall prepare a correct and complete list containing names not exceeding five times the number of vacancies out of the senior most officers as mentioned in Col. 5 of the Schedule who are qualified under the rules for promotion to the class of posts concerned. He shall forward this list along with their Confidential Rolls and Personal file, to the Secretary to the Government in the Education Department. (2) (a) A Committee consisting of the Chairman of the Commission or when the Chairman is un-able to attend, any other member thereof nominated by him, the Secretary to the Government in the Education Department and the Special Secretary to the Government in the Appointments Department or his representative not below the rank of Deputy Secretary, the Director as members and the Deputy Secretary to Government in the Education Department as Non-member Secretary, shall consider the cases of all persons included in the list, interviewing such of them as they may deem necessary and shall prepare a list containing names of suitable candidates upto twice the number of such posts as are indicated in sub-rule (1 ). In the case of promotion to the post of Director, he shall not be the member of the Committee. (b) The Chairman or the Member of the Commission shall preside at all meetings of the Commitee at which he is present. (3) The Committee shall prepare a separate list containing names of persons who may be selected to fill officiating vacancies already existing or are likely to occur till the next meeting of the Committee. (a) the list so prepared shall be reviewed and revised every year ; (b) the list shall ordinarily be in force until it is reviewed or revised in accordance with cl. (a) of sub-rule (3 ). (4) The Committee may co-opt a suitable expert from outside to assist the Committee for selection of candidates for such posts as are to be filled by promotion. (5) The names of the candidates selected as suitable, shall be arranged in the order of seniority. (6) The list prepared by the Committee shall be sent to Govt. together with the Confidential Rolls and Personal files of the candidates included in them as also of those superseded, if any. (7) Where consultation with the Commission is necessary the lists prepared in accordance with sub-rule (2) and (3 shall be forwarded to the Commission by the Govt, along with (a) Confidential Rolls and Personal Files of officers whose namesare included in the 1 sts (b) Confidential Rolls & Personal Files of all officers who are proposed to be superseded by the recommendations made by the Committee. The Commission shall consider the list prepared by the Committee along with the other documents received from Govt. and unless they consider any changes necessary, shall approve the lists and if the Commission shall consider it necessary to make any change in the lists received from Government the Commission shall inform Government of the changes proposed and after taking into account the comments, if any, Government may approve the lists finally with such modifications, as may, in their opinion, be just and proper. " R. 28 is for temporary or officiating appointments and this I may read- " R. 28 Temporary or officiating appointments (1) A temporary vacancy in a senior post may be filled by Government by appointing thereto in an officiating capacity an officer whose name is included in the list prepared under R. 20 or in the list prepared under rules 24 and 25. Provided that, till the preparation of the first list or in case the list is exhausted, a vacant post may be filled by Government by appointing thereto, a member of the Service eligible for appointment to the post by promotion or by appointing thereto, temporarily a person eligible for appointment by direct recruitment to the Service under the provisions of these rules, but no such appointment made shall be continued beyond a period of six months without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur. " There are two categories of posts namely, senior posts and junior posts as per the Schedule. Since the question as to whether there was a Director of Oriental Research who could sit on the Selection Committee has arisen for consideration, I may notice that the post of Director is a senior post and is 100% by selection. There are posts of Deputy Directors which are also senior posts. Senior Research Assistants are shown under the junior posts these posts are to be filled up 50% by direct recruitment and 50% by promotion. The qualifications prescribed which are dealt with in column 4 of the Schedule are as follows "second Class Master's degree in (a) Sanskrit or (b) Pali or (c) Prakarit or (d) Persian or (e) Hindi or History "preferably" with special papers in ancient and Medieval Indian History from a University established by law in India or a degree of a foreign University recognised as equivalent thereto. Preference will be given to persons with (1) working knowledge of Rajasthani language and literature and (2) experience in a research institute and/or study of old manuscripts. " It may be observed that the word 'preferably, which is put in inverted commas, was added subsequently. It is in the light of the above that the validity of the appointment of respondent Shri Manaria falls to be determined.
(3.) BEFORE proceeding further I may deal with certain preliminary objections that were raised by learned counsel for Shri Manaria. In the first instance, he submitted that this was a petty post not being an independent one and, therefore, a writ of quo warranto should not be issued, secondly, the writ petition has been filed after considerable delay; the first appointment of Shri Manaria being of the year 1960, thirdly, the State was not made a party to the writ petition and therefore, the writ petition is not maintainable, and lastly, irrespective of the validity or otherwise of the earlier orders at present Shri Manaria is functioning as Senior Research Assistant on account of a valid order. The fourth preliminary objection has a bearing on the merits and, therefore, strictly speaking it is not a preliminary objection. As regards the first objection learned counsel placed reliance on the following passage at page 147 of the Halsbury's Laws of England, Third Edition, Volume 2 "276 Substantive nature of officean information in the nature of quo warranto lay only if the office was substantive in character, that is, an office independent in title, and if the holder of the office was an independent official, not one discharging the functions of a deputy or servant at the will and pleasure of others. An informa tion in the nature of a quo warranto lay in respect of an office held at pleasure, provided the office was one of a public and substantive character. " He further cited G. D. Karkare vs. T. L. Shevde (1 ). The appointment, however, that fell to be considered in the Nagpur case (1) was of Shri T. L. Shevde, a retired Judge of the High Court who was subsequently appointed as Advocate General. The Office held by Shri Shevde was, by no means, one of petty nature. The passages do not disclose that any office created by a statute came up for consideration. The Rajas-than Oriental Research Institute came to be constituted by the Rules. The post of Senior Research Assistant is, of course, a junior post, but it is included in the Service. According to the Schedule the posts are to be filled up 50% by direct recruitment and 50% by promotion. One has to be a Second Glass M. A. in (a) Sanskrit or (b) Pali or (c) Prakarit or (d) Persian or (e) Hindi or History preferably with special papers in ancient and Medieval Indian History from a University established by law in India or a degree of a foreign University recognised as equivalent thereto. I am unable to hold that such a post governed by the statute is not of a substantive character or that it is not an Office independent in character. Further it cannot be said that the incumbent is a servant at the will and pleasure of others. In my view, therefore, holder of such a post is amenable to a writ of quo warranto. It is true, the initial appointment of the petitioner was made in 1961 and thereafter he was continuing on the basis of fresh orders passed from time to time. Then he has been dealt with according to the rules and order's of his appointment were passed during the pendency of the writ petition. The writ petition was allowed to be amended by the Court so as to bring in the orders passed in 1971. In such a case, therefore, the writ petition cannot be thrown away on the ground of delay. The writ of quo warranto is directed primarily at the holder of the post and, therefore, though the State would be a proper party, by no means, can it be predicated that it is a necessary party in the writ petition. Therefore, I overrule all the three preliminary objections. ;