DINESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application, under Article 226 of the Constitution of India, the petitioner prays for quashing the Order contained in An-nexure '1' dated 23rd Oct., 1978, appointing respondent No. 2 as Chairman, Bihar State Housing Board, on the ground that it was illegal and ultra vires of Section 7 of the Bihar State Housing Board Second Ordinance, 1978 (Bihar Ordinance No. 105 of 1978) (since replaced by Bihar Ordinance No. 43 of 1979), hereinafter referred to as the Ordinance. The further prayer is to restrain respondent No. 2 from functioning as the Chairman of the Bihar State Housing Board (hereinafter referred to as the Board). In other words, the first prayer is one for issue of a writ of mandamus and the second prayer is for the issue of a writ of quo warranto. The manner, in which the two prayers have been combined in this petition, has led to confusion as to what actually the petitioner wanted -- whether a writ of mandamus against the State Government or a writ of quo warranto against respondent No. 2. In the course of the argument, however, learned counsel for the petitioner has explained the petition to be one seeking a writ of quo warranto against respondent No. 2, restraining the latter from functioning as Chairman of the Board.

(2.) The facts are simple: By the notification contained in An-nexure 'I', the State Government reconstituted the Bihar State Housing Board, nominating respondent No. 2 as its Chairman. Certain other persons were also nominated to the other posts in the said Board, but we are not concerned with those appointments. We are concerned only with the appointment of respondent No. 2 as the Chairman of the said Board. This notification was made on the 23rd Oct., 1978 in terms of the Bihar Ordinance No. 105 of 1978. Admittedly, at the relevant time, when the respondent No. 2 was nominated as the Chairman of the said Board, he was also a sitting Member of the Legislative Council of the State. In his Counter-affidavit he has added certain other posts which he was holding at the relevant time, i.e., Pro-Chairman Bihar State Sports Council and President of the Bihar Women's Sports Association and Member of the Patna Regional Development Authority. Now according to the petitioner, in terms of Section 7 of the Ordinance, if a person undertook any work unconnected with his office of Chairmanship of the said Housing Board, he had to obtain the sanction of the State Government for undertaking such work or works. In the instant case, it is stated that respondent No. 2 has been holding the office of the Chairman of the said Housing Board without obtaining sanction of the State Govt. for functioning as Member of the Legislative Coun-cil or for any other jobs which were unconnected with the work of his office of Chairman of the said Housing Board. It is, therefore, submitted that respondent No. 2 must be restrained from functioning as the Chairman of the said Housing Board and the said poet must be declared as vacant by issuing a writ of quo warranto against the said respondent.

(3.) The stand taken by respondent No. 2 is that the State Government having appointed him to the post of Chairman of the said Housing Board with full knowledge of the other posts which he was holding, the sanction by the State Government for holding the other posts, while holding the post of the Chairman of the said Housing Board, must be implied and that, there-fore, the petition must fail. The stand taken by respondent No. 1, the State of Bihar however, contradicts the stand taken by respondent No. 2. According to respondent No. 1, the provisions enumerated in the Ordinance do not debar appointment as Chairman of a man like respondent No, 2, who is a member of the Legislative Council President of the Bihar Wowen's Sports Association; Member of the Patna Regional Development Authority and Pro-Chairman Bihar State Sports Council. 'In any event, therefore, the appointment was made with the State Government's sanction'. According to respondent No. 1, therefore, firstly no sanction was needed, in the case of respondent No. 2, to appoint him as Chairman of the said Housing Board, and if any was needed, it was given by the State Government. We specifically called upon the learned counsel for the State to produce any order indicating such sanction having been given by the State Government, but no such sanction could be produced. It cannot be gainsaid that when the law requires the State Government to do a thing, any order passed in connection with that thing must be in writing--at least it cannot be oral, in so far as the acts performed by the State Government are concerned. In the absence of any order, giving sanction to respondent No. 2 to continue to function in the offices unconnected with the work of Chairman, it appears that no such sanction has been given by the State Government and that it has depended upon its understanding of the provisions contained in the Ordinance, that no sanction was needed for appointing a person like respondent No. 2 as the Chairman of the said Housing Board.