# B. SRINIVASA REDDY v. KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD EMPLOYEES' ASSOCIATION AND ORS

- **Citation:** [2006] Supp. 5 S.C.R. 462
- **Court:** Supreme Court of India
- **Decided:** 2006-08-28
- **Case number:** Civil Appeal No. 3719 of2006
- **Bench:** Dr. Ar. Lakshmanan, Tarun Chatterjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-srinivasa-reddy-v-karnataka-urban-water-supply-and-drainage-board-employees-21677
- **Pages:** 43

## Headnote

Service Law-Appointment-Contractual appointment-Appellant was
C Managing Director of Karnataka Urban Water Supply and Drainage BoardPursuant to retirement he was re-appointed by State Government on the same
post on contract basis "until fi1rther orders"-Challenge to-Upheld by
High Court-Held: Government had undoubted power to make contractual
appointment until further orders-The power incfoded the power to make
appointment on substantive basis, temporary basis, officiating basis, ad hoc
D basis, daily wages or contractual basis-There was no violation of any
statutory provision because the appellant had requisite experience and
capacity before appointment-Writ petition filed by Employees' Union and
its President was motivated-Findings of legal mala tides by High Court
unsustainable-Karnataka Urban Water Supply and Drainage Board Act,
,,
J
E 1973 and the Rules made thereunder Sections 4(2)& 6(1) I Rule 3.
industrial Disputes Act, 1947-Section 2(q)(q)---!rade Unions Act,
1926-Chapter Jll-Managing Director of Karnataka Urban Water Supply
and Drainage Board pursuant to retirement re-appointed on the same post
on contract basis-Wr.it petition filed by Employees' union challenging the
F same-Union not registered on the date of filing writ petition-Maintainability
of the writ petition-Held, not maintainable-Constitution of India, 1950Article 226.
G
H
Constitution of India, 1950-Article 226-Quo Warranto-Writ of Quo
Warran to does not lie if the alleged violation is not of a statutory provision.
Constitution of India, 1950-Article 226-Petition praying for Writ of
Quo Warranto-/s in the nature of public interest litigation-Hence it is not
maintainable at the instance of a person who is not unbiased.
Equity-Relief-Courts not to grant relief to person who comes to
462
-
B. SRINIVASA REDDY F. KARNATAKA.URBAN WATER SUPPLY &:DRAINAGE BOARD EMP. ASSON.
463
Court with unclean hands and with malafide intention/motive.
A
Appellant retired as Managing Director of the Karnataka Urban Water
Supply and Drainage Board (Respondent No.4) on 31-01-2004. He was reappointed on the sanie post on 01-02-2004 on contract basis "until further
orders". This was challenged by Respondent No.1, the Karnataka Urban Water
Supply & Drainage Board Employees' Association, by filing writ petition. High B
Court allowed the writ petition.
In appeals to this Court, the questions which arose for consideration
are 1) Whether the writ petition framed at the instance of Respondent No. 1
was not maintainable since it was not a registered trade union on the date of
filing of the writ petition which information was withheld from the Court; 2) C
Whether the writ petition was also motivated as Respondent No. 1 had earlier
lodged a false complaint to the Lokayukta against the Appellant which was
found to be baseless and 3) Whether the State Government had the requisite
. power to make the contractual appointment "until further orders" without
specifying the period of appointment and no writ of Quo Warranto could be D
issued in that regard.
Allowing the appeals, the Court
HELD: 1.1. The petitioners in the writ petition, respondent No.1 which
is an unregistered Association under the Trade Unions Act, 1926 cannot
maintain the writ petition. [503-E]
E
1.2. Chapter-Ill of the Trade Unions Act, 1926 sets out rights and
liabilities of the registered Trade Unions. Under the said enactment, an
unregistered trade union or a trade union whose registration has been
cancelled has no manner of right whatsoever, even the rights available under
the l.D. Act have been limited only to those trade unions which are registered F
under the Trade Unions Act 1926 by insertion of clause 2 (q)(q) in the I.D.
Act w.e.f. 21.08.1984 defining a trade union to mean a trade union registered
under the Trade Unions Act. 1926. The High Court miserably failed and
gravely erred in holding that respondent Nos. 1 and 2 have locus standi to
question the appointment of the appellant in the light of the change of law G
that

## Text

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A
B
B. SRINIVASA REDDY
v.
KARNATAKA URBAN WATER SUPPLY AND DRAINAGE
BOARD EMPLOYEES' ASSOCIATION AND ORS.
AUGUST 28, 2006
[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.]
Service Law-Appointment-Contractual appointment-Appellant was
C Managing Director of Karnataka Urban Water Supply and Drainage BoardPursuant to retirement he was re-appointed by State Government on the same
post on contract basis "until fi1rther orders"-Challenge to-Upheld by
High Court-Held: Government had undoubted power to make contractual
appointment until further orders-The power incfoded the power to make
appointment on substantive basis, temporary basis, officiating basis, ad hoc
D basis, daily wages or contractual basis-There was no violation of any
statutory provision because the appellant had requisite experience and
capacity before appointment-Writ petition filed by Employees' Union and
its President was motivated-Findings of legal mala tides by High Court
unsustainable-Karnataka Urban Water Supply and Drainage Board Act,
,,
J
E 1973 and the Rules made thereunder Sections 4(2)& 6(1) I Rule 3.
industrial Disputes Act, 1947-Section 2(q)(q)---!rade Unions Act,
1926-Chapter Jll-Managing Director of Karnataka Urban Water Supply
and Drainage Board pursuant to retirement re-appointed on the same post
on contract basis-Wr.it petition filed by Employees' union challenging the
F same-Union not registered on the date of filing writ petition-Maintainability
of the writ petition-Held, not maintainable-Constitution of India, 1950Article 226.
G
H
Constitution of India, 1950-Article 226-Quo Warranto-Writ of Quo
Warran to does not lie if the alleged violation is not of a statutory provision.
Constitution of India, 1950-Article 226-Petition praying for Writ of
Quo Warranto-/s in the nature of public interest litigation-Hence it is not
maintainable at the instance of a person who is not unbiased.
Equity-Relief-Courts not to grant relief to person who comes to
462
-
B. SRINIVASA REDDY F. KARNATAKA.URBAN WATER SUPPLY &:DRAINAGE BOARD EMP. ASSON.
463
Court with unclean hands and with malafide intention/motive.
A
Appellant retired as Managing Director of the Karnataka Urban Water
Supply and Drainage Board (Respondent No.4) on 31-01-2004. He was reappointed on the sanie post on 01-02-2004 on contract basis "until further
orders". This was challenged by Respondent No.1, the Karnataka Urban Water
Supply & Drainage Board Employees' Association, by filing writ petition. High B
Court allowed the writ petition.
In appeals to this Court, the questions which arose for consideration
are 1) Whether the writ petition framed at the instance of Respondent No. 1
was not maintainable since it was not a registered trade union on the date of
filing of the writ petition which information was withheld from the Court; 2) C
Whether the writ petition was also motivated as Respondent No. 1 had earlier
lodged a false complaint to the Lokayukta against the Appellant which was
found to be baseless and 3) Whether the State Government had the requisite
. power to make the contractual appointment "until further orders" without
specifying the period of appointment and no writ of Quo Warranto could be D
issued in that regard.
Allowing the appeals, the Court
HELD: 1.1. The petitioners in the writ petition, respondent No.1 which
is an unregistered Association under the Trade Unions Act, 1926 cannot
maintain the writ petition. [503-E]
E
1.2. Chapter-Ill of the Trade Unions Act, 1926 sets out rights and
liabilities of the registered Trade Unions. Under the said enactment, an
unregistered trade union or a trade union whose registration has been
cancelled has no manner of right whatsoever, even the rights available under
the l.D. Act have been limited only to those trade unions which are registered F
under the Trade Unions Act 1926 by insertion of clause 2 (q)(q) in the I.D.
Act w.e.f. 21.08.1984 defining a trade union to mean a trade union registered
under the Trade Unions Act. 1926. The High Court miserably failed and
gravely erred in holding that respondent Nos. 1 and 2 have locus standi to
question the appointment of the appellant in the light of the change of law G
that has been brought about by insertion of Section 2(q)(q) of the LD. Act and
having regard to the provisions of Chapter-In of the Trade Unions Act, 1926.
(481-A-D]
1.3. In the instant case, the employees association approached the High
Court with unclean hands. It has approached this Court by suppressing the H
464
SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.
A material facts and has snatched an order on the basis of wrong averments
when the employees union has no locus standi to maintain the writ petition
on the date relevant in question. Courts cannot grant any relief to a person
who comes to the Court with unclean hands and with ma/a fide intention/
motive. The writ petition filed by the employees association is liable to be
B thrown out on this single factor. The writ petitioner union made a false
averment that it is a registered trade union, and that itself is a ground to
dismiss the writ petition. Though it is eminently a fit case for awarding
exemplary costs, considering the employees financial aspect and taking a
lenient view of the matter, this Court is not ordering any costs.
c
(481-E, G, H; 482-AJ
Naraindas v. Government of Madhya Pradesh and Ors., AIR (1974) SC
1252, relied on.
Parshotam Lal Dhingra v. Union of India, AIR (1958) SC 36; Mahinder
Kumar Gupta and Ors. v. Union of India, Ministry of Petroleum Natural Gas,
D [1995) l SCC 85; Coinpar and Anr. v. General Manager, Telecom Distric1
and Ors., (2004[ 13 SCC 772; Parents Teachers Association and Ors. v.
Chairman, Kendriya Vidyalaya Sangathan and Ors., AIR (2001) Rajasthan
35 and Fertilizer Corporation Kamgar Union (Regd.) Sindri and Ors. v. Union
of India and Ors., I 19811 l sec 568, referred to.
E
2.1. The appellant was not disqualified for appointment as Managing
Director w.e.f. 1-2-2004. There is no bar for appoiatment to the post in question
on contract basis. The Government has absolute right to appoint persons on
contract basis. [503-A-BI
2.2. The power to appoint the Managing Director of the Board is vested
F in the Board under Section 4(2) of the Karnataka Urban Water Supply and
Drainage Board Act, 1973. Neither the 1973 Act nor the Rules made
thereunder prescribed any mode of appointment or tenure of appointment.
When the mode of appointment, tenure of appointment have been left to the
discretion of the Government by the 1973 Act and the Rules made thereunder
G and the 1973 Act makes it clear that the Managing Director shall hold office
at the pleasure of the Government, the High Court could not have fettered the
discretion of the Government by holding that Section 4(2) of the 1973 Act
does not expressly give the power to the State Government to make ad hoc or
contract appointment. When the Act and the statutory rules have not
prescribed any definite term and any particular mode, the High Court could
H not have read into the statute a restriction or prohibition that is not expressly
•
--
B. SRINIYASA REDDY r. KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD Ef\IP. ASSON.
465
prohibited by the Act and the Rules. It is well settled that when the statute A
does not lay down the method of appointment or term of appointment and when
the Act specifies that the appointment is one of sure tenure, the Appointing
Authority who has power to appoint has absolute discretion in the matter and
it cannot be said that discretion to appoint does not include power to appoint
on contract basis.1482-E-GI
2.3. There is no violation of Section 4(2) of the 1973 Act and Rule 3 of
the Rules made under the said Act as held by the High Court because the
appellant having been the Chief Engineer of the Board had experience in
administration and capacity in commercial matters before he was appointed
as M.D. on contract basis by the Government. (491-DJ
2.4. The Government has no doubt power to make contractual
appointment until further orders. The power included the power to make
appointment on substantive basis, temporary basis, officiating basis, ad hoc
basis, daily wages or contractual basis. The terms and conditions of the order
appointing the appellant made it clear that the appointment is temporary and
B
c
is until further orders. An appointment which is temporary remains temporary D
and does not become permanent with passage of time. The finding recorded
by the High Court that the appointment is bad for the reason that the
appointment which was made on temporary basis has continued for nearly 2
years is wholly contrary to law rarticularly when the Act and the Rule do not
stipulate maximum period of appointment. The High Court gravely erred in E
issuing a Writ of Quo Warrant a when there is no clear violation of law in the
appointment of the appellant. The jurisdiction of the High Court to issue a
Writ of Quo Warran/a is a limited one which can only be issued when the
appointment is contrary to the statutory rules.
(482-C, G, H; 483-A; 484-D; 503-DJ
Ramachandran v. A. Alagiriswami, Govt. Pleader High Court, Madras
& Anr., AIR (1961) Madras 450; High Court of Gujarat & Anr. v. Gujarat
Kishan Mazdoor Panchayat & Ors., (2003) 4 SCC 712 and Mor Modern Coop.
Transport Society Ltd v. Financial Commissioner & Secretmy to Government
of Haryanq, (2002( 6 SCC 269, relied on.
R.K. Jain v. Union of India, ( 1993 J 4 SCC 119; A. N. Sashtri v. State of
Punjab and Ors., (1988) Supp SCC 127; Dr. B. Singh v. Union of India and
Ors., (2004) 3 SCC 363; The University of Mysore and Anr. v. C.D. Govinda
F
G
Rao and Anr., ( 1964( 4 SCR 575; Ghulam Qadir v. Special Tribunal and Ors.,
(2002( l SCC 33; Union of India v. KP. Joseph & Ors., (1973) 1SCC194;
Statesman (Private) ltd v. H.R. Deb, (1968) 3 SCR614; Dr. UmakantSaran H
466
SUPREME COURT REPORTS [2006] SCPP. 5 S.C.R.
A v. State of Bihar, f 197311SCC485; Kumari Chitra Ghose v. Union of India,
(196912SCC228; P.l. lakhanpa/ v. Ajit Nath Ray, AIR (1975) Delhi 66;
Rajendra Prasad Yadav v. State of Madhya Pradesh, f199716 SCC 678; Satish
Chandra Anandv. Union of India, 119531SCR655 and P.K. Sandhu (Mrs.) v.
Shiv Raj V. Patil, 119971 4 SCC 348, referred to.
B
3.1. It is settled law by a catena of decisions that Court cannot sit in
judgment over the wisdom of the Government in the choice of the person to be
appointed so long as the person chosen possesses prescribed qualification
and is otherwise eligible for appointment. In the instant case, the discretion
available to the competent authority under the Rules has been exercised by
C the appointing authority in making the appointment of the appellant. That could
not have been annulled by the High Court. (485-C; 495-H; 496-Af
3.2. The finding of legal ma/a jides by the High Court is unsustainable
being based on a misunderstanding of the law and facts. When a competent
and experienced officer of an outstanding merit is appointed to a higher post
D on contract basis after his super-annuation from service in larger public
interest does not suffer from legal malice at all. The appointment was made
in the interest of the Board and the State at a time when nobody else other
than the appellant could have served the interests of the State better. The High
Court failed to appreciate the element of urgency involved in making the
appointment because of impending negotiations with the World Bank. The writ
E petition was motivated as respondent No.I had lodged a false complaint to the
Lokayukta against the appellant which was found to be baseless by the
Lokayukta. A petition praying for a Writ of Quo Warranto being in the nature
of public interest litigation, it is not maintainable at the instance of a person
who is not unbiased. The second respondent is the President of the first
F respondent- Union. He has chosen this forum to settle personal scores against
his erstwhile superior officer after his retirement. The proceedings is not
meant to settle personal scores by an employee of the department. The High
Court ought to have dismissed the writ petition filed by respondent No.I at
the threshold. In any event, respondent No. I failed to discharge the heavy
burden to substantiate the plea of malajides. [497-F-H; 498-A-C)
G
H
3.3. The post of Managing Director is a highly respectable post. It is a
post of great confidence - a lynchpin in the administration and smooth
functioning of the administration requires that there should be complete
rapport and understanding between the Managing Director and the Chief
Minister. The Chief Minister as a Head of the Government is in ultimate
)
B. SRINIVASA REDDY~·. KARNATAKA URBAN WATER SUPPLY lt DRAINAGE BOARD EMP. ASSQN.
467
charge of the administration and it is he who is politically answerable to the A
people for the achievements and failures of the Government. If the Chief
Minister forfeits the confidence on the appellant, he may legitimately in the
larger interests of administration appoint him until further orders as M.D.
of the Board. It does not involve violation of any legal or constitutional rights.
Secondly that the vast multitudinous activities in which a modern State is B
engaged, there are bound to be some posts which require for adequate
discharge of their functions, high degree of intellect and specialized
experience. It is always a difficult problem for the Government to find suitable
officers for such specialized posts. There are not ordinarily many officers
who answer the requirements of such specialized posts and the choice with
the Government is very limited and this choice becomes all the more difficult, C
because some of these posts, though important and having onerous
responsibilities, do not carry wide executive powers and officers may not,
therefore, generally be willing to be transferred to those posts. The
Government has in the circumstances to make the best possible choice it can,
keeping in view the larger interests of the administration. When in exercise D
of this choice, the Government transfers an officer from one post to another,
the officer may feel unhappy because the new post does not give him the same
amplitude of powers which he had while holding the old post. But that does
not make the appointment arbitrary. So long as the appointment is made on
account of the exigencies of administration, it would be valid and not open to
attack under Arts. 14 & 16 of the Constitution. Here the post of M.D. was E
admittedly a selection post and after careful examination of the merits, the
Chief Minister selected the appellant for the post of M.D. It was not the case
of the respondents that the appellant was not found qualified to the task or
that his work was not satisfactory. [499-H; 500-A-F)
3.4. The High Court erred in probing the mind of the Government and F
acted contrary to its own finding on the role of appointing authority in Quo
Warranto proceedings. The Division Bench was not right in quashing the
appointment of the appellant as Managing Director on the misconception that
he has been re-appointed to the said office, whereas it was a fresh appointment
under the provisions of the Act and in accordance with the prescribed G
qualification and eligibility under the Act. Further the appointee holds the
office during the pleasure of tire Government as provided under Section 6(1)
of the 1973 Act. The Division Bench was not correct in holding that the
Government is not affected by allowing thE writ of Quo Warranto against the
appointee and in observing that the Government ought not have filed the appeal ..
The Bench failed to appreciate that it is the duty of the Government to justify H
468
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A the appointment as such there is no wrong in filing the writ appeal.
1502-E-H)
Centre for Public Interest litigation & Anr. v. Union of India & Anr.,
120051 8 sec 202, distinguished
B
E.P. Royappa v. State of Tamil Nadu, (197412 SCR 348 and B.R. Kapur
v. State of Tamil Nadu & Anr., (2001 ( 7 SCC 231, referred to.
4. The Division Bench of the High Court ordered cost in the writ appeal.
There is no justification in ordering cost in the facts and circumstances of
the case. Therefore, the appellant, State Government and respondent No.4 are
C entitled to refund the cost, if it has already been paid. However, this Court is
not ordering cost against respondent Nos. 1 & 2 taking into consideration of
the financial constraint of the employees and by taking a lenient view of the
matter. Appellant has already been released and in his place a person has
already been appointed as a Managing Director of the Board on contract basis.
D Keeping this admitted fact in mind, this Court, therefore, keeps it on record
that the Government or the Board would be at liberty to consider and appoint
a candidate, if occasion arises, on contract basis. If such a situation does arise
in that case it would be open to the State or the Board to consider the
candidature of the appellant with others. (503-H; 504-A, BJ
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3719 of2006.
F
From Final Judgment and Order dated 3/4.4.2006 of High Court of
Kamataka at Bangalore in Writ Appeal/No. 86/2006.
WITH
C.A. No. 3722 of2006.
P.P. Rao, P.S. Raj~gopal, Lalit Mohini Bhat, Naveen R. Nath, Hetu Arora
and Sanjay R. Hegde for the Appellant.
G
Raju Ramachandran, Devashish Bharuka, Hansa Bharuka, Ruchi Kohli,
Alok Sangwan and Sushi! Balwada for the Respondents.
The Judgment of the Court was delivered by
DR. AR. LAKSHMANAN, J. Leave granted in both the special leave
H petitions.
-
..
B. SRINIVASA REDDY 1·. KARNATA~A URBAN WATER SUPPLY & DRAINAGE BOARD EMP. ASSON. ILAKSHMANAN. 11 469
These appeals have raised substantial questions of law involving A
interpretation of certain provisions of the Karnataka Urban Water Supply artd
Drainage Board Act, 1973 (for short "the Act") and the Rules made thereunder
and also the principles of law governing the Writ of Quo Warran/a and the
power of the Government to make a contractual appointment under Section
4(2) of the Act.
Civil Appeal No. __ of 2006
(Arising out of SLP (C) No. 9393 of 2006)
B
This appeal was filed by Mr. B. Srinivasa Reddy (hereinafter called Mr.
Reddy) seeking leave to appeal against the final judgment and order dated C
04.04.2006 passed by the High Court of Karnataka at Bangalore in Writ
Appeal No. 86 of2006. By the impugned order, the High Court dismissed the
writ appeal filed by the appellant-herein against the order dated 10.01.2006
passed by a learned Judge of the said Court in Writ Petition No. 9852 of2004
and has declared that the appellant is not entitled to hold the post of D
Managing Director of the Karnataka Urban Water Supply & Drainage Board
(hereinafter called 'the Board') (respondent No.4).
Civil Appeal No. ___ of 2006
(Arising out ofSLP (C) No. 10388 of2006)
The above appeal was filed by the Government of Karnataka against the
very same judgment passed by the Division Bench of the High Court in Writ
Appeal No. 254 of 2006 whereby the Division Bench dismissed the writ appeal
filed by the State.
FACTS:
The Karnataka Urban Water Supply & Drainage Board Act, 1973 was
enacted to prnvide for the establishment of water supply and drainage Board
and the regulation and development of drinking water and drainage facilities
E
F
in the urban areas in the State of Karnataka. The Board, with the previous G
sanction of the Gcvernment of Karnataka, framed the Karnataka Urban Water
Supply & Drainage Board Service5 (Cadre and Recruitment) Regulations,
1985. An amendment to serial No. 1 of the Schedule to the Regulations was
introduced by the Board whereby even the Chief Engineers of the Board were
made eligible for appointment to the post of Managing Director. Respondent H
470
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R
A No. I is the Karnataka Urban Water Supply & Drainage Board Employees'
Association represented by its President Halakatte. He is also .respondent
No.2 in his capacity as President of the Employees' Association. The State
of Kamataka and the Board are also the contesting respondents 3 and 4 in
this appeal. Respondent No. I (hereinafter called the Employees' Association)
B filed writ petition No. 4400 I of 1995 in the High Court of Karnataka challenging
the appointment of one S. Ramamurthy as the Managing Director of the Board
on the ground that by virtue of Section 7(1)(d) of the Act, the said Ramamurthy,
being an officer/servant (Chief Engineer earlier) of the Board, could not have
been appointed as the Managing Director of the Board.
C
The Government of Karnataka, vide notification No. UDD/14/UB/91
dated 28.04.1997, nominated the appellant who was a Chief Engineer of the
Board as one of the Directors of the Board "with immediate effect and until
further orders". The Board, after due approval of the State, vide G.O. No. HUD
15 UWE 93 dated 11.12.1997, amended the method of recruitment for the post
of Managing Director of the Board in serial No. I of the Schedule to the
D Regulations to the effect that a Managing Director can be selected only from
amongst the Chief Engineers of the Board. Other criterias were removed.
E
On 28.01.1998, the Government of Karnataka, through the Urban
Development Department, vide Notification No. UDD 4 UWE 98 dated
28.01.1998, pursuant to Section 53 of the Act read with Rule 27 of and serial
No. I of the Schedule to the Regulations, promoted the appellant on officiating
basis and <1ppointed him as the Managing Director of the Board w .e.f. 31.01.1998
afternoon and "until further orders" since S. Ramamurthy, the then Managing
Director of the Board took voluntary retirement.
F
The Employees' Union filed an amended version of the writ petition
before the High Court also challenging the above-mentioned amendment to
the Regulation which relates to making of a provision of appointing the Chief
Engineer of the Board as its Managing Director. The writ petition was further
amended to include the challenge to the promotion/appointment of the appellant
as the Managing Director of the Board pursuant to the said amendment.
G
H
The learned Single Judge ofthe High Court allowed the writ petition on
12.04.2002 and held:
(a) that the impugned amendment of the Regulations was illegal
since the same was contrary to Section 7(1 )( d) of the Act;
(b) that the appointment of the appellant is illegal since, being a
•
•
•
B. SRINl.YASA REDDY 1·. KARNATAKA URBAN WATER SUPPLY & D.JlAINAGE BOARD EMP. ASSON. fLAKSHMANAN.J.I 471
Chief Engineer of the Board, he was disqualified under Section A
7(1)(d) of the Act and hence his appointment was;contrary to the
provisions of Sections 7(1 )( d), 68 and 69 of the Act, Rules and
Regulations;
(c)
that the appointment was further held to be illegal since it was
also contrary to Regulation 27 of the Regulations as the B.
appointment was not restricted to one year but until further
orders.
The High Court quashed the appointment orders and directed the State
to take immediate steps to appoint the Managing Director of the Board.
Writ appeals were filed by the Board, the Government and the appellantMr. Reddy.
c
The Division Bench of the High Court in Writ Appeal No. 2877-78 of
2002, i_ssued notice and stayed the order of the learned Single Judge for a
period of two months which was later continued. By virtue of this order, the D
appellant continued to enjoy the post of Managing Director.
The appellant retired as Managing Director of the Board on 31.01.2004.
The Relieving Order reads thus:
"Sri B. Srinivasa Reddy, Managing Director, KUWS&DB who retired E
from service on attaining super annuation as 31-01-2004 is relieved
from his duties on the afternoon of 31-01-2004."
He was re-appointed as Managing Director of the Board until further
orders on 01.02.2004. Writ Petition No. 9852 of2004 was filed for a Writ of
Certiorari, Writ of Quo Warranto and any other writ, order or direction under F
Article 226. Learned Single Judge allowed the Writ Petition No. 9852 of2004.
Writ Appeal N1>. 86 of 2006 was admitted and the operation of the learned
Single Judge's order was stayed on 16.01.2006 and Writ Appeal No. 86 of2006
was finally dismissed on 04.02.2006.
The Court also. imposed costs of Rs. I 0,000/- against the appeilant and G
also imposed cost against the State Government and responderit No.4 at
Rs.5,000/- each separately.
It is pertinent to notice. that in 2002, a complaint was made to the
Lokayukta against the Chairman and the appellant - Mr. Reddy by Mr. Halakatte, H
472
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A President of the Employees' Association (R2 herein). By order dated 13.08.2003
Lokayukta held that the allegation against the appellant is baseless. Lokayukta
after absolving the appellant of false allegations directed action against the
then FA & CAO of the Board. The Lokayukta closed the complaint on
01.02.2005 after Government has taken action against FA & CAO.
B
We heard Mr. P.P. Rao, learned senior counsel assisted by Mr. P.S.
c
D
E
F
G
H
Rajagopal, learned counsel for the appellant and Mr. San jay R. Hegde for the
State of Kamataka and Mr. Raju Ramachandran, learned senior counsel assisted
by Mr. Devashish Baruka and Mrs. Hansa Baruka, learned counsel for the
contesting respondent - the Employees' Union.
Mr. P.P. Rao, learned senior counsel made elaborate submissions on
facts and on law with reference to the pleadings, annexures, judgments and
the relevant provisions of the Act. He made submissions on the following
issues:-
I.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Writ petition as framed not maintainable at the instance of an
unregistered Trade Union;
Locus of the writ petitioners - Employees' Union;
No Writ of Quo Warranto unless there is violations of statutory
provisions in making appointment;
No violation of Section 4(2) and or Rule 3 of Rules as held by
the High Court;
Government has always the power to make contractual
appointment until further orders and finding to the contrary is ex
facie erroneous;
High Courts reliance on official Memorandum dated 23 .12.1994 is
erroneous;
Pleasure of the Government under Section 6(1) of the Act and
Rule 3 of the Rules which envisages the qualifications;
Until further orders-pleasure of the Government and discretion;
Legal malice-finding is unsustainable;
Writ petition by RI, R2 was motivated as RI had lodged a false
complaint to the Lokayukta against the appellant Reddy which
was found to be baseless.
...
>
B. SRINIVASA REDDY''· KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD EMP. ASSON. ILAKSHMANAN. J.[ 473
The above submissions will be dealt with in extenso in paragraphs A
infra.
Mr. San jay R. Hegde adopted the arguments of Mr. P.P. Rao. He invited
our attention to Article 310(2) of the Constitution of India.
Article 310 deals with tenure of office of persons serving the Union or B
a State. Under the pleasure doctrine, a servant of the Government holds office
during the pleasure of the sovereign. But in order to protect civil servant
against the political interference Article 311 introduces certain safeguards.
Moreover, a specific contract can override the doctrine of pleasure as reported
in Parshotam Lal Dhingra v. Union of India, AIR (1958) SC 36.
Mr. Raju Ramachandran in his usual fairness fairly conceded that he is
not questioning the State Government's power in appointing persons on
contract basis. According to him, the entire case is not based on end of lack
c
of power but an abuse and mis-use of that power by the State Government.
According to him, non-specification of a period of appointment amounts to D
abuse of power, mis-use of power and illegal malafides and that power is not
used for the purpose for which it is vested in the Government. According to
him, form of the writ should not be a matter which should inhibit the Court.
This argument was advanced in regard to the prayer made in the writ petition
on the maintainability of the writ petition. Mr. Raju Ramachandran submitted
though the employees association was not a registered body on the date of E
filing of the writ petition, the association was registered again as a trade union
under the Trade Unions Act on 20.01.2005 and that though the employees
union was not a registered trade union but was a recognized union by all and,
therefore, the association is entitled to maintain the writ petition as framed.
He also made elaborate submissions with reference to the records, annexures F
and the judgments and of the Government orders.
Mr. Raju Ramachandran also submitted that the civil appeal has now
become infructuous in view of the developments which have taken place
subsequent to the orders of this Court dated 08.05..2006 by which notice was
is;med to the respondents in view of the fact that the Government of Karnataka G
has now appointed one Mr. P.B.Ramamurthy as the Managing Director of the
Board with immediate effect by an. order contained in the notification dated
17.05.2006 and pursuant to the above order the appellant Mr.Reddy has
already made over the charge of the office of Managing Director of the Board
to the said P. B. Ramamurthy who had received charge of the said office on
H
474
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A 19.05.2006. It was submitted that the appellant has no substantive right left
qua the post of Managing Director of the Board since even as per his
appointment order dated 31.01.2004 he is to have charge only "until further
orders". In view of the above subsequent developments, learned counsel for
the Union submitted that the present appeal has become infructuous.
B
According to Mr. Raju Ramachandran, though the power to appoint is
vested with the State Government under Section 4(2) of the Act the same is
not unfettered or uncontrolled. It cannot be based on mere ipsi dixit of the
Government the discretion of the Government cannot be said to be without
any bounds. If the High Court on the facts of a particular case finds that such
C discretion has been mis-used, the High Court would be within its power to
check such actions of the Government.
According to him, a Writ of Quo Warranto would lie to challenge an
appointment made until further orders on the ground that it is not a regular
appointment. Merely because the appointment is for until further orders
D would oust the jurisdiction of the High Court to issue a Writ of Quo Warranto
when it is found that the very appointment was illegal and not warranted
within the provision of law.
It is submitted that the words-pleasure of the Government found in
Section 6( I) of the Act cannot be given a meaning so as to grant arbitrary
E and un-fettered powers to the Government with respect to appointment of a
Managing Director to the Board. It is submitted that the words cannot mean .
as absolute and unconditional will of the Government, for that would go
counter to the constitutional scheme and to the rule of law itself.
In the instant case, under the guise of temporary appointment made
F until further orders, the Government in fact by misusing its discretionary
powers ensured that the appellant's appointment continues without any limit
as to tenure or term. It is submitted the High Court rightly passed the
impugned order since the appointment was in violation of the provisions of
law. It is submitted that no appointment to a public post can be made without
G a specific tenure. According to Mr. Raju Ramachandran, the official
memorandum dated 23. 12.1994 squarely applies to the Board in question and
that the said memorandum in express terms provide that procedure contained
therein shall apply, inter alia, to Boards which are subordinate to or under
the control of the Government. It is thus submitted that the Board is covered
with the said memorandum.
H
...
B. SRINIVASA REDDY 1·. KARNATAKA URBAN WATER SUPPLY&:. DRAINAGE BOARD EMP. ASSON. [LAKSHMANAN. J.j 475
It is further contended that Section 7( 1) ( d) of the Act read with the A
above official memorandum would make it clear that retired employees cannot
be appointed the post of Managing Director of the Board. The purpose of
Section 7(l)(d) and the office memorandum dated 23.12.1994 has to be looked
into while deciding the legality of the appointment of the appellant to the post
of Managing Director of the Board. According to Mr. Raju Ramachandran it
has nowhere come on record that the appellant possessed such exceptional B
and high qualifications as to warrant the Government to deviate from its own
policy and appointed the appellant. In fact any experience gained by the
appellant during his tenure as the Managing Director prior to his retirement
is of no consequence since such appointment was held to be illegal and
invalid by the High Court. No exceptional circumstances has been shown that C
the appointment of the appellant to the post of Managing Director in deviation
to regular mode of appointment of IAS officers Jn deputation.
In regard to the maintainability of the writ petition Mr. Raju Ramachandran
submitted that the High Court did not .rely upon the status of the writ
petitioners as registered trade union but rather accepted their locus standi as D
employees of the Board and their right to form trade unions associations
though unregistered and on such basis permitted them to challenge the
appointment in writ proceedings. According to him, the unregistered unions,
in the eyes of law can contend that it has to come and knock the doors of
this Court seeking justice by pointing out the illegalities of the State E
Government in appointing the appellant as Managing Director of a Statutory
Board wherein public interest is involved. The purpose, according to him, is
to espouse the cause of the workers. Therefore, the writ petitioners were
employees of the Board and cannot be considered as wayfarers and that the
employees approached the High Court in public interest and have been
attempting to dissuade the Government from granting favour to the appellant F
herein by appointing him at the post of Managing Director of the Board for
long.
We have carefully considered the rival submissions with reference to
the entire records.
( 1) Locus of the unregistered Trade union = Maintainability:
Respondent No. I association was a recognized association. It is
registered again as a trade union on 20.01.2005 i.e. before the pronouncement
of judgment of the learned single judge. Respondent No.2 Halakatte, who is
G
the President of Respondent No. I in his individual capacity has also challenged H
476
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A the appointment. In Quo Warran/a proceedings any concerned person can
file a writ petition. While dealing with the locus, the High Court has relied
upon the right of persons to form association and consequently to file a Writ
in Quo Warranto proceedings.
In fact, Mr. Rao distinguished the cases referred to by the respondents
B on ·the issue of non-registered associations having no locus to file writ
petitions as distinguishable and inapplicable in the present facts and
circumstances.
In Mahinder Kumar Gupta and Ors. v. Union of India, Ministry of
C Petroleum and Natural Gas, [1995] l SCC 85, this Court held that the writ
petition filed by an Association is not maintainable as Association has no
fundamental right under Article 32 of the Constitution of India.
In Coinpar and Anr. v. General Manager, Telecom District and Ors.,
[2004] 13 SCC 772, the appellant before this Court was an Association which
D claims working in public interest preferred an appeal against the judgment of
the High Court with an application for permission to file special leave pet:tion.
The said permission was granted. After the matter was heard, this Court
found that the appellant was neither party in the case before the Forum nor
before the High Court. It was also not shown before this Court in what
manner the appellant was aggrieved by the judgment of the High Court. This
E Court held that the appellant has no locus standi and cannot be permitted to
challenge the judgment of the High Court.
F
G
Our attention was also drawn to the proceedings of the Deputy Registrar
of the Trade Union Dharwad (Division) Hub Ii dated 02.11.1992 Government
of Karnataka (Department of Labour). The said proceedings reads thus:-
"Subject:
Cancellation of registration of Trade Unions, under Trade
Union Act, 1926.
Reference:
This office notice No. TUA/ AR.1991 dated 30.7.1992
*****
WHEREAS a notice was issued from this office to the General Secretary/
Secretary, Kamataka Urban Water Supply & Drainage Board Employees
Association, Hubli, cause as to why the registration of trade union
should not be cancelled owing to the violation of the provisions of
H
section 28 of the Trade Union Act, 1925, by not submitting the
,,,
B. SRINIVASA REDDY r. KARNATAKA URBAN WATER SUPPLY & DRAINAGE BOARD EMP. ASSON. ILAKSHMANAN. JI 477
Annual Return of the union for the year ending 3 lst December, 1991. A
AND whereas the union was not complied with the above
requirements, even after notice, contravened the above provisions of
law. Therefore in exercise of my powers conferred under Section IO(b)
of the Act, 1 hereby order that the Registration of the Water Supply
& Drainage Board Employees Association, Hubli Bearing Registration B
No. 544/85 be cancelled with effect from the date of this order.
The General Secretary is hereby directed to surrender the certificate
of registration."
In the instant case, the appellant was appointed w.e.f. 01.02.2004. The C
Employees Union filed the writ petition on 08.03.2004. On the said date, the
respondent-Union was not a registered trade union and the Certificate of
Registration of the Trade Union in Form 'C' was issued by the Government
of Kamataka, Department of Labour only on 20.01.2005 which reads thus:-
"lt is hereby certified that the
D
Kamataka Nagar Niru Sarbaraju Mattu Olacharandi Noukarar Sangha,
Dharwa.
has been registered under the Indian Trade Unions Act, 1926.
Dated: 20th January 2005
Sd/ E
Deputy Registrar of Trade Unions
Assistant Labour Commissioner,
Dharwad Division, Hubli."
Jh Parents Teachers Association and Ors. v. Chairman, Kendriya
Vidyalaya Sangathan and Ors., AIR (2001) Rajasthan 35, speaking for the F
Bench, Chief Justice Dr. AR. Lakshmanan, in paras 12 and 13 observed as
under:- ·
"(12). The appellant-petitioners have not placed before this Court any
document to show that the Parents-Teachers Association is a registered
and recognised association. The writ petition has been allegedly filed G
in public interest and the alleged large interest of the students. It is
evident that the so-called Parents- Teachers Association is an
unregistered and unrecognised association and, therefore, in our view,
has no fundamental right to approach this Court under Article 226 of
the Constitution. This point has been concluded by the decision of H
A
B
c
D
E
F
G
H
478
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
.the Apex Court in the case of Mahendra Kumar Gupta (supra) and
by the decision of Full Bench of this Court in the case of RSEB
Accountant's Association (supra). A reply to the preliminary objection
raised by the respondents was also made by the appellants. It is
stated that the Parents-Teachers Association has been recognised by
the KVS and that the Principal is the Vice Chainnan of the said
Association and hence, the Association is competent to file the writ
petition on behalf of the students. In our view, the above reason
cannot be considered as a valid reason for maintaining the writ petition.
It is not in dispute that the Association is not a registered body and
recognised Association. Thus, after examining this point of law in
detail and placing reliance on various judgments delivered by the
Apex Court from time to time, the Full Bench of this Court in the case
of RSEB Accountant's Association (supra) held as under:-
"It may also be observed that an unregistered association has no
fundamental right to approach this Court under Art. 226 of the
Constitution and this point is concluded by the decision in the
case of Shri Maninder Kumar Gupta v.