Dr. Dinesh Kumar Kesarwani vs Union Of India & And 2 Ors. on 13 December, 2018

Dr. Dinesh Kumar Kesarwani vs Union Of India & And 2 Ors. on 13 December, 2018

alahabad high court
Bench: B. Amit Sthalekar, Jayant Banerji

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 
Court No. - 39
 

 
Case :- WRIT - A No. - 20050 of 2013
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India & And 2 Ors.
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Akhilesh Kumar Singh,Arvind Srivastava,R.B.Singhal,R.K.Singh,Rajesh Tewari,S.C.,Vishwa Ratan Dwivedi
 

 
				Connected with
 

 
Case :- WRIT - A No. - 46794 of 2012
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Akhilesh Kumar Singh,Arvind.Srivastava,M.K. Mishra,R.K. Singh,Rajesh Tewari,S.C.
 
And
 
Case :- WRIT - A No. - 31346 of 2013
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India & 3 Ors.
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Akhilesh Kumar Singh,Arvind Kumar Srivastava,Chandra Prakash Gupta,K.C.Kaushik,R.K.Singh,Rajesh Tewari
 
And
 

 
Case :- WRIT - A No. - 45575 of 2013
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India & 3 Ors.
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Raj Kumar Singh,Rajesh Tewari
 
And
 
Case :- WRIT - A No. - 34269 of 2014
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India Thru Secy. And 3 Others
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Akhilesh Kumar Singh,Rajesh Tewari
 

 
And
 

 
Case :- WRIT - A No. - 18961 of 2015
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India And 4 Ors.
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Akhilesh Kr. Singh,Krishna Agarwala,Rajesh Tewari,S.C.
 
And
 
Case :- WRIT - A No. - 20829 of 2017
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Rajesh Tewari
 
And
 
Case :- WRIT - A No. - 59619 of 2014
 

 
Petitioner :- Dr. Dinesh Kumar Kesharwani
 
Respondent :- Union Of India Thru' Secry. And 4 Others
 
Counsel for Petitioner :- Gopal Mishra
 
Counsel for Respondent :- A.S.G.I.,Akhilesh Kumar Singh,Rajesh Tewari
 
And
 
Case :- WRIT - A No. - 37904 of 2015
 

 
Petitioner :- Dr. Dinesh Kumar Kesarwani
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,S.C.
 
And
 
Case :- WRIT - A No. - 4634 of 2017
 

 
Petitioner :- Dr. Dinesh Kumar Kesharwani
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Gopal Misra
 
Counsel for Respondent :- A.S.G.I.,Anant Tiwari,Rajesh Tewari
 
***************
 

 
Hon'ble B. Amit Sthalekar,J.

Hon’ble Jayant Banerji,J.

( Delivered by Hon’ble B. Amit Sthalekar, J.)

1. Heard Sri Gopal Misra, learned counsel for the petitioners and Sri Rajesh Tewari, learned counsel for the respondents no. 2 to 5.

2. Writ Petition No. 20050 of 2013 is in the nature of a quo-warranto filed by the petitioner calling upon the respondent no. 2 to show cause as to how he is functioning on the post of Director, Allahabad Museum, Allahabad, without being appointed in accordance with law. There is a further prayer in the nature of certiorari for quashing the recommendation of the Search-cum-Selection Committee, in favour of the respondent no. 2 dated 13.11.2010, as well as order of appointment dated 21.4.2011, of the respondent no. 2.

3. The Allahabad Museum is a Central Museum under the control of Ministry of Culture, Government of India and managed by a Society known as the Allahabad Museum Society, which has its own bye-laws, known as the Allahabad Museum Society Service Bye-Laws, 1986. The Society is registered under the Societies Registration Act, 1860.

4. Briefly stated the case of the petitioner is that he was appointed on a substantive vacant post of Technical Assistant on 15.4.1988 by the Chairman, Allahabad Museum Society. His services were regularized and also confirmed by the Director of the Allahabad Museum Society. It is stated that an advertisement was published in the newspaper “Amar Ujala” on 21.4.2010 for the post of Director, Group A in the Allahabad Museum in the pay scale of 37400-67000 Grade Pay 8700. The petitioner also applied against the said advertisement for the post of Director. Interview letter was issued on 26.10.2010 to the petitioner and thereafter the interview was held. It is stated that the Allahabad Museum Society called a meeting on 18.04.2011 to approve the selection of the respondent No.2 and thereafter a letter of appointment was issued to him on 21.04.2011.

5. The contention of the petitioner is that the Resolution, copy of which has been filed as Annexure-16 to the writ petition, bears the signature of the respondent No. 2 as the Director and Member Secretary of the Allahabad Museum, Allahabad as well as that of His Excellency the Governor, Sri B.L. Joshi. He submits that in the Resolution, in agenda No.16 it was resolved to accept the recommendation of the Selection Committee to appoint Sri Rajesh Purohit, respondent No. 2 as Director of the Allahabad Museum. Thereafter, letter of appointment was issued on 21.04.2011, page 135 of the writ petition. It is submitted that the members who were shown to have attended the meeting on 18.04.2011, contains the name of one Dr. S.K. Sharma as In-charge Director, Allahabad Museum, Allahabad but the Resolution does not bear his signature nor does it bear the signatures of the persons mentioned at Sl. No. 2 to 7. It has in fact been signed by the respondent No.2 as Director, Allahabad Museum, Allahabad. The names of the persons who attended the meeting are as under:-

1. Hon’ble B.L. Joshi, Governor, U.P.

Chairman

2. Sri Sanjeev Mittal, Joint Secretary, Govt. of India, Ministry of Culture, New Delhi Representative- Dr. Vijay S. Madan, Joint Secretary (Museum), Govt. of India, Ministry of Culture, New Delhi.

Member

3. Prof. V.D. Mishra Member

4. Prof. K.K. Thapaliyal Member

5. Sri Mukesh Kumar Meshram, Divisional Commissioner, Allahabad Division Member

6. Additional Director, Treasury & Pension, Allahabad Division, Allahabad Member

7. Dr. Ajay Kumar Pandey, Director, Museum Directorate, Banarasi Bagh, U.P.

Member

8. Dr. S.K. Sharma, Director (Incharge) Allahabad Museum, Allahabad Member-Secretary

6. The petitioner submits that this is not possible as by the Resolution the recommendation of the Selection Committee was being adopted and at that time the respondent no. 2 was nowhere in the picture as Director, Allahabad Museum, therefore, the Resolution itself was absolutely illegal as it did not bear the signature of the other Members, present at the meeting of the Society on 18.04.2011.

7. The contention of Sri Gopal Misra learned counsel for the petitioner further is that the appointment letter itself is dated 21st April, 2011 whereas the Resolution under the signature of the respondent No.2 as well as that of the Governor has been signed on 12.05.2011 which means that even before the Resolution was actually adopted, the appointment letter had been issued to the respondent no.2 and therefore, the appointment letter itself is illegal and void.

8. Learned counsel for the petitioner further submitted that three counter affidavits have been filed, one by respondent no. 2, sworn by him, but very surprisingly the counter affidavit filed on behalf of the Union of India is also sworn by Sri Rajesh Purohit as deponent which shows the collusive action between the respondent no. 1 and respondent no. 2 and in fact, Sri Rajesh Purohit as the mouth piece of the Union of India is trying to defend and justify his own appointment as well as the Resolution of the Allahabad Museum Society which renders the entire action as illegal and void.

9. Sri Gopal Mishra further referred to the Recruitment Rules of 2005, as approved by the Government of India and submitted that the eligibility criteria prescribes that the candidate for the post of Director must have at least 10 years’ experience in a museum of standing including 5 years’ administrative experience in a responsible post.

10. The submission is that the petitioner had submitted an RTI application before Kurukshetra Development Board, Kurukshetra, making enquiries with regard to Sri Krishna Museum where the respondent no. 2 claimed to be working and he was informed that the respondent no. 2 was working as Assistant Curator since 5.9.1990 till his resignation on 9.6.2012. It was also mentioned in the RTI reply that the Administrative Officer of Sri Krishna Museum is the Chief Executive Officer of the Kurukshetra Development Board, Kurukshetra. He, therefore, submits that the respondent no. 2 did not have any administrative experience and, therefore, his appointment on this count also was illegal.

11. Sri Rajesh Tewari appearing on behalf of all the respondents, per contra, submitted that the Resolution of 18.4.2011 was absolutely correct as it was signed by His Excellency, the Governor. When questioned, as to how the signature of the respondent no. 2 came to be on this Resolution when he was not even the Director on that date nor was he present in the meeting held on 18.4.2011. He submitted that it was signed by the respondent no. 2 in his capacity as Director and Member Secretary. He further alleged that the petitioner had indulged in several previous litigation and was a litigious person and it was only when he could not succeed in his litigation in various writ petitions and SLPs, that he filed, he has now turned around to challenge the appointment of the respondent no. 2 itself through the present writ of quo-warranto and, therefore, this writ of quo-warranto is not maintainable as the petitioner is trying to settle a personal score. He further submitted that the recommendation for appointment has to be made under Rule 31 of Memorandum of Association, which is not disputed between the parties.

12. The copy of the Memorandum of Association of the Allahabad Museum, Allahabad has been passed on to the Court by the learned counsel. Para 31 of the same states that the Director of the Society shall be appointed by the Society with the prior approval of the Central Government on such terms and conditions, as may be approved by the Central Government provided that the first Director shall be appointed by the Central Government.

13. Para 31 of the Memorandum of Association reads as under:-

“31. The Director of the Society shall be appointed by the Society with prior approval of the Central Government on such terms and conditions as may be approved by the Central Government provided that the first Director shall be appointed by Central Government for such period and on such terms and conditions as the Central Government may deem fit and proper.”

14. Sri Tewari submits that on 6.04.2005, a letter was issued by the Government of India to the Chairman, Allahabad Museum Society requesting him to initiate immediate action to fill up the post as per procedure. Through this letter the recruitment rules for the post of Director were also approved, Annexure 2 and 3 to the writ petition. It is stated that a Selection Committee was constituted by the Government of India vide its letter dated 06.04.2009, Annexure-7 to the writ petition, addressed to Dr. S.K. Sharma, Incharge Director, Allahabad Museum, Allahabad and it is in pursuance thereof that the advertisement was issued. The composition of the Selection Committee reads as under:

Sl. No. Composition of the Selection Committee Remarks

1. Chairman, Allahabad Museum Society Chairman

2. One Member to be nominated by the Executive Committee of the Society Member

3. Two Experts to be recommended by the society and approved by the Govt. of India Member

4. One representative of the Govt. of India not below the rank of the Joint Secretary to the Govt. of India.

Member

5. SC/ST member to be nominated by the society, not below the rank of Professor (Indian Univerity) or Joint Secretary, Govt. of India Member

15. The Search-cum-Selection Committee invited applications for interview for appointment on the post of Director and the following seven persons appeared and were interviewed.

1. Dr. Satyavrat Tripathi

2. Dr. Hira Singh Bhakoni

3. Dr. Sunil Gupta

4. Dr. Dinesh Kumar Kesarwani

5. Dr. Shri Ranjan Shukla

6. Dr. Shiv Kumar Sharma

7. Shri Rajesh Purohit

16. The Committee after the interview found the respondent No. 2 to be suitable and recommended that he be appointed as Director, Allahabad Museum, Allahabad.

17. Sri Rajesh Tewari, further submitted that the Resolution of 18.4.2011 could only be signed on 12.5.2011 because preparation of the minutes takes some time and in the meantime by the appointment letter dated 21.4.2011, the respondent no. 2 had already been appointed as Director of the Allahabad Museum, Allahabad and, therefore, the Resolution was issued under his name and it also bore the signature of His Excellency, the Governor, Sri B.L. Joshi and, therefore, he submitted that there was absolutely no illegality either in the Resolution or in the appointment letter, issued to the respondent no.2.

18. We have carefully examined the submissions of the parties and perused the documents on record. It is not in dispute that the Selection Committee had recommended the name of respondent no.2 for appointment as Director of the Allahabad Museum, Allahabad which was also approved by the Central Government. It is correct that the resolution of the society was passed on 18.4.2011 but except for the signature of His Excellency the Governor, the minutes of the meeting held on 18.4.2011 which were signed on 12.5.2011 do not bear the signatures of the other members present on 18.4.2011.

19. Admittedly, the Allahabad Museum is run by a society which is an autonomous body. It is not an issue that the minutes of the meeting recording the proceedings and resolutions undertaken and passed at the meeting of the Society held on 18.4.2011 were signed subsequently on 21.5.2011. The only persons who can object to the record of proceedings and resolutions are the members themselves who were present at the meeting. It is not the contention on behalf of the petitioner that at any time, the recording of procedure/minutes of the meeting of the society held on 18.4.2011 were disputed by any member of the society. Several resolutions were passed on 18.4.2011 at the meeting of the society and only one of them was with regard to the appointment of the respondent no.2. The resolutions so passed at the meeting of the Society on 18.4.2011, given the Society’s nature and constitution, would be effective on passing of those resolutions at that meeting which was duly convened and properly conducted having requisite quorum and cannot be subject to a subsequent ratification of the minutes, unless the members object to the record of minutes. Therefore, the contention of the learned counsel for the petitioner, that only after the minutes of the meeting were approved, could the respondent no.2 be appointed is not correct. The rules/bye-laws of the society do not contemplate such a course of action for the resolutions of the society to come into effect. The signatures on the minutes of the meeting held on 18.4.2011 of the Society that were made on 12.5.2011 would merely be an attestation of the record of the proceedings. In an autonomous Society, if implementation of its resolutions are made subject to approval of the minutes, the same would lead to stagnation, delays and bottlenecks resulting in stifling of the working of the Society. Moreover, the signature of the respondent no.2 appearing on the approved minutes of the meeting of 18.4.2011 are in his capacity of member-Secretary of the Society.

It is pertinent to mention here that the record of the minutes of the meeting held on 18.4.2011 also includes resolutions pertaining to taking notice of the statement of accounts, audit inspection report, plan and non-plan revised estimate of budget, annual action plan, documentation of the collected ancient items and art work, enhancement of medical expenses, consideration of ACPS of the employees under the 5th Pay Commission Recommendation, promotion to the post of Curatorial Associate etc. The resolutions so passed are critical to the discipline and overall well being of the Society. Thus, postponing the implementation of the resolution till the time of signing of the minutes by all the members apart from the Governor of Uttar Pradesh would be counter-productive. It is nobody’s case that the minutes of the meeting held on 18.4.2011 were subsequently disapproved by the members of the Society.

20. The appointment of the respondent no.2 was made pursuant to the resolution passed at the meeting of the society held on 18.4.2011 only after the prior recommendation of his name by the Selection Committee which was also approved by the Central Government. Therefore, we discard the contention of the learned counsel for the petitioner that the appointment of the respondent no.2 as Director of the Allahabad Museum suffers from illegality and infirmity on account of the minutes of the meeting dated 18.4.2011 not being signed by all the members.

21. With regard to the contention of the learned counsel for the petitioner of the respondent no.2 being appointed contrary to rules, it needs no iteration that a writ of quo warranto would issue when any appointment is contrary to statutory rules. The documents filed alongwith the writ petition (Annexures 2, 3 and 4) enclosing recruitment rules for the post of Director, Allahabad Museum, Allahabad which also contain the eligibility criteria are not stated to be statutory rules. It is true that the rule/regulations, including the amendments, pertaining to recruitment in the Allahabad Museum have come into effect after their sanction by the Central Government. However, the rules/regulations are required, at the first instance, to be added, altered, amended or rescinded by the Executive Committee of the society. This fact is admitted by the petitioner in paragraph 33 of the writ petition. Therefore, just because these recruitment rules, duly sanctioned by the Central Government, were notified in the Official Gazette, would not clothe them with a statutory character. These rules can at best be described as rules made by the Executive Committee of the Society and which, after sanction of the Central Government, may, at the most, take on the character of executive instructions.

22. Therefore, the recruitment rules providing eligibility for the post of Director of the Allahabad Museum may be sought to be enforced before an appropriate forum seeking appropriate relief. However, in a writ of quo warranto, this Court would shy of entertaining contentions of non-eligibility or otherwise, entailing compliance of non statutory rules as in the instant case. In the judgement enclosed as Annexure No.6 to the writ petition (Civil Misc. Writ Petition No.34041 of 2001, etc.), the Court was not considering whether the recruitment rules for the post of Director of the Allahabad Museum were statutory or not.

The Supreme Court in the case of Hari Bansh Lal Vs. Sahodar Prasad Mahto & Ors. (2010) 9 SCC 655 has held that a writ in the nature of quo warranto only makes a declaration with regard to the appointment under challenge without its relative impact. Paragraphs 16, 17, 18 and 19 of the judgment read as under :-

“16. A writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Others, (2003) 4 SCC 712, (three-Judges Bench) Hon’ble S.B. Sinha, J. concurring with the majority view held:

“22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India 2, SCC para 74.)

23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana)”

17. In Mor Modern Cooperative Transport Society Ltd. vs. Financial Commissioner & Secretary to Govt. of Haryana and Another, (2002) 6 SCC 269, the following conclusion in para 11 is relevant.

“11. … …. The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision.”

18. In B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees’ Assn. and Others, (2006) 11 SCC 731, this Court held:

“49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.”

19. It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In the later part of our judgment, we would discuss how the appellant herein was considered and appointed as Chairman and whether he satisfied the relevant statutory provisions.”

23. Therefore, the challenge made by the petitioner in the instant case to the appointment of the respondent no.2 by means of a writ of quo warranto is fallacious and the petition deserves to be dismissed. The so-called ineligibility of the respondent no.2 alleged by the petitioner are based on the non-statutory rules of recruitment which cannot be looked into by this Court for purpose of consideration of issuance of a writ of quo warranto. It is important to note that, as stated at the bar, the respondent no.2 has already resigned as Director of the Allahabad Museum. In this view of the matter also, the writ petition loses its force and is liable to be dismissed.

24. For the reasons aforesaid, the writ petition is dismissed.

25. The other writ petitions were connected to the leading Writ petition no. 20050 of 2013 on the request of the learned counsel for the petitioner that the orders impugned in these writ petitions were all passed by the Respondent no. 2-Rajesh Purohit in his capacity as Director, Allahabad Museum and in the Writ petition no. 20050 of 2013, the appointment of Rajesh Purohit was challenged. Since, we have dismissed the Writ petition no. 20050 of 2013, the other connected writ petitions, namely, Writ petition no. 46794 of 2012, Writ petition no. 31346 of 2013, Writ petition no. 45575 of 2013, Writ petition no. 34269 of 2014, Writ petition no. 18961 of 2015, Writ petition no. 20829 of 2017, Writ petition no. 59619 of 2014, Writ petition no. 37904 of 2015 and Writ petition no. 4634 of 2017 are delinked from this petition.

26. The above petitions may now be listed before the appropriate Bench and shall not be treated as tied up or part heard with this Bench.

Order date: 13th December, 2018 Kirti/o.k.

 

Leave a Reply

Your email address will not be published. Required fields are marked *