BHAGWATI PRASAD MISRA Vs. U P GOVERNMENT

JUDGEMENT

(1.) The petitioner No. 1 Sri Bhagwati Prasad Misra is a member of the District Board of Basti (hereinafter referred to as the Board) and the petitioner No. 2 is a taxpayer of the said Board. The Board invited applications from persons qualified to be appointed as Secretary of the said Board by putting an advertisement in the issue of the Amrita Bazar Patrika of 26-10-1955. The last date for receiving the applications was 10-11-1955. According to the allegations in the affidavit filed in support of the petition the respondent No. 4 along with 58 others applied for the said post. It is the petitioner's case that the respondent No. 4 Sri Mrigendra Nath Srivastva was not qualified for the said appointment, firstly, because he is the son-in-law of one Sri Kripa Shankar, Parliamentary Secretary to the Chief Minister of U. P., and who was on 10-11-1955 a member of the Board and, secondly, because he (the respondent No. 4) did not file the required medical certificate as also the riding certificate. One of the applicants for the said post was one Kailash Shankar who is said to be the grandson of the petitioner No. 2. On 6th of November. 1955, Sri Kripa Shankar submitted his resignation from the office of member of the Board and on 25-12-1955 the said resignation was accepted by the respondent No. 6 the Commissioner of Gorakhpur Division. A committee was appointed by the Board to interview the various candidates who had applied for appointment to the post of Secretary of the Board. The said Committee is said to have consisted of Sri Tameshwar Prasad, President of the Board, and Sarva Sri Rai Jai Narain, advocate, Ram Shanker Lal, mukhtar, and Dhanuk Dhari and Ram Lal who are said to have no educational qualifications. It is further alleged that because of the influence of Sri Kripa Shanker the interview committee were interested in the appointment of the respondent No. 4 Sri Mrigendra Nath Srivastva who was at that time holding the post of Executive Officer of the Municipal Board, Basti (respondent No. 5) and therefore selected him. After the selection the respondent No. 4 was appointed as the Secretary of the Board. It is also alleged that after he had been so appointed, the son of the Chairman of the Board was appointed as the Executive Officer of the Municipal Board of Basti. The petitioners have alleged that before these appointments were made it was pointed out to the respondents Nos. 1, 3 and 6 i.e., the State Government, the District Magistrate, Basti, and the Commissioner, Gorakhpur Division, that the whole matter had been pre-arranged and the appointments would not be made on merits and that it had been decided to appoint the respondent No. 4 as the Secretary of the Board and the son of the President of the Board as the Executive Officer of the Municipal Board, Basti. It is admitted in the affidavit filed in support of the petition that before the respondent No. 4 was appointed as Secretary of the Board the Board had referred the matter to the State Government because some difficulty was felt about the interpretation of Rule 1 prescribing qualifications of District Board Secretaries given on page 207 of the District Board Manual, and the State Government answered the reference by saying that there could be no objection to the appointment of the respondent No. 4 as the Secretary of the Board on a correct interpretation of the said rule. It is also alleged that in the meeting in which the respondent No. 4 was appointed as the Secretary of the Board, members of the Board who were not willing to support the candidature of the respondent No. 4 were prevented from entering the place where the meeting was being held as the meeting was held under a police cordon with the result that out of 57 members only 34 attended the meeting. The petitioner's case is that the respondent No. 4 was appointed on the condition that he would furnish certificates of medical fitness and outdoor service and also of being able to ride a horse as required by Rule 1 (c) of the rule mentioned above. Sri Kailash Shanker mentioned above applied to the District Magistrate to declare the appointment of the respondent No. 4 as invalid but he declined to accept the application. It is further alleged by the petitioners that the respondent No. 4 has not resigned from the post of Executive Officer of the Municipal Board, Basti, though he joined as the Secreteary of the Board.

(2.) On these facts the petitioners have prayed for the issue of a writ of quo warranto commanding the respondent No. 4 to show the legal authority under which he is holding the post of Secretary of the Board. There is also a prayer for the issue of a writ of certiorari to the respondent No. 2 quashing the entire proceedings relating to the appointment of the respondent No. 4 as Secretary of the Board including the order dated 24-11-1956 appointing the respondent No. 4 to the said post. There is also a prayer for the issue of a writ of mandamus commanding the respondents No. 1 to 3 to cancel the appointment of the respondent No. 4 and for a further writ of mandamus commanding the respondent No. 3 to declare the appointment of the respondent No. 4 as Secretary of the Board as invalid. It has also been prayed that a writ of mandamus be issued commanding the respondents Nos. 1 to 3 to reconsider the matter of appointment afresh according to law after cancelling the appointment of the respondent No. 4. There is also the usual prayer for the issue of any other suitable writ, command or direction which the circumstances of the case may warrant.

(3.) Three counter affidavits have been filed in the case. One is sworn by Sri Mrigendra Nath Srivastava the respondent No. 4, the second is sworn by Sri Hathi Prasad, office superintendent of the Board, and the third is sworn by Sri Shriram Asthana. It is not necessary to mention all the allegations made in these counter affidavits. I shall take each of these counter affidavits one by one and shall mention only these facts which are relevant for the decision of the case. It is admitted by Sri Mrigendra Nath Srivastva that Sri Kripa Shanker, Parliamentary Secretary to the Chief Minister of U. P., is his father-in-law and was a member of the Board from before 10th of November, 1955. It is alleged that he submitted his resignation on 6th November, 1955 from the membership of the said Board. It is also admitted that Sri Mrigendra Nath Srivastva had not filed a medical certificate showing that he was medically fit for outdoor active service nor had he filed a riding certificate. According to this counter affidavit Sri Kripa Shan-leer was not a member of the Board on 19th of August, 1956 when Sri Mrigendra Nath Srivastava was selected for appointment as the Secretary of the Board nor was he a member on 8th of October, 1956 when the respondent No. 4 joined the service of the Board as Secretary. It is also alleged that there was no precedent requiring, the filing of the medical certificate or the riding certificate along with the application for appointment as Secretary of the Board and the general practice was that the said certificates were filed after a candidate had been selected for appointment. It is also alleged that in the advertisement appearing in the issue of the Amrita Bazar Patrika it was not mentioned that the application had to be accompanied by a medical certificate showing fitness for outdoor service. According to this counter affidavit the medical certificate and the riding certificate were submitted to the Board by the respondent No. 4 on 8th of October 1956 before joining the post. The allegation made in the affidavit filed in support of the petition that Sri Kripa Shanker resigned his membership on 6th of November, 1955 and his resignation was accepted on 20th of December, 1955 is admitted, but the allegation that the members of the interview committee were partymen of Sri Kripa Shanker is controverted. It is also mentioned that Sarva Sri Dhanuk Dhari and Ram Lal, are literate persons and were at the time of the appointment of the respondent No. 4 as also on the date when the counter affidavit was filed members of the U. P. Legislative Assembly. It is further stated in the counter affidavit that the respondent No. 4 was appointed as the Secretary of the Board by a unanimous resolution. The allegation of the petitioners that Sri Kailash Shanker had applied for permission to inspect the file relating to the appointment of Secretary and that permission to inspect was refused by the President has been admitted. It is further alleged in the counter affidavit that respondent No. 4 had Joined on 8th of October, 1956 on one year's probation and the Municipal Board, Basti, has decided to treat him as on deputation for one year with the District Board, Basti. It is admitted that the respondent No. 4 was to hold a lien on the post of Executive Officer, Municipal Board, Basti, during the said period but the allegation that he was holding two posts i.e.. one of the Secretary of the Board and the other of Executive Officer of the Municipal Board has been controverted and it has been stated that he was-drawing salary only from the Board. It is also alleged in this counter affidavit that Sri Kailash Shanker had filed a writ petition in this Court (being civil miscellaneous writ No. 4191 of 1956) on allegations similar to these contained in the present petition and the said petition was rejected by Mehrotra, J., by his order dated 6th of December, 1956. It is also alleged that the petitioner Sri Bhagwati Prasad Misra is displeased with the President of the Board, Sri Tameshwar Prasad as the latter had objected to a T. A. bill submitted! by the former. It is also alleged that Sri Bhagwati Prasad Misra petitioner tried to obtain the Congress ticket for contesting the U. P. Legislative Assembly Elections in 1952 and again in 1957 but he was not given the ticket and so he is displeased with Sri Kripa Shanker.