Case BriefsHigh Courts

Kerala High Court: A Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J. while dismissing a petition seeking a writ of Quo Warranto, made significant observations upon what constitutes employment under the Central or the State Government, as mentioned under Article 319(d) of the Constitution.

Brief Facts

In the present case, a retired Judge of the Kerala High Court was appointed as the Chairperson of the Kerala State Commission for Backward Classes after serving as Upa Lokayukta. By the instant public interest writ petition, the petitioner seeks to issue a writ of quo warranto against Respondent 1 and further prays to declare Respondent 2 as disqualified for the post of Chairman, Kerala State Commission for Backward Classes citing restrictions under the Constitution and the State Laws.

Observations

               “The concept of employment involves ‘three ingredients: (1) employer (2) employee and (3) the contract of employment. The employer is one who employs, i.e., one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee hereunder the employee agrees to serve the employer subject to his control and supervision.”

  • Hargovind Pant v. Dr Raghukul Tilak, (1979) 3 SCC 458, a member of the Rajasthan Public Service Commission after the termination of his position as the member, was appointed as Governor of Rajasthan. While considering the challenge, in the light of Article 319(d) of the Constitution of India, the Supreme Court observed,

 “Howsoever wide and expansive a meaning we may give to the words employment under the Government of India, the office of Governor cannot come within it. The word ’employment’ is not a word with a single fixed meaning but it has many connotations. On the one side it may bear the narrow meaning of relationship of employer and employee and on the other, it may mean in its widest connotation any engagement or any work in which one is engaged. If the former be the sense in which the word ’employment’ is used in clause (d) of Article 319, the office of Governor would certainly not be an employment, because the Governor of a State is not an employee or servant of any one. He occupies a high constitutional office with important constitutional functions and duties. The executive power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in his name. He constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate ordinances while the Houses of the Legislature are not in session. He is also entitled to address either House of the Legislature or both Houses assembled together and he may send messages to the House or Houses of the Legislature with respect to a bill then pending in the legislature or otherwise. It is the Governor’s report which generally forms the basis for the President taking action under Article 356 of the Constitution. It will be seen from this enumeration of the constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term.”

 In view of the distinct facts of the present case, the Court reproduced relevant sections of the Kerala State Commission for Backward Classes Act, 1993, Parliament (Prevention of Disqualification) Act, 1959, Legislative Assembly (Removal of Disqualification Amendment) Act, 1979 and the Kerala Lokayukta Act, 1999.

The Court, relying on the above precedents and in the light of the facts and circumstances of the present case observed,

“As such, it is necessary to consider whether the office of Lokayukta is under the Government, that is to say, whether there exists a relationship of master and servant between the Lokayukta and the State. It cannot be disputed that as per the scheme of the Lokayukta Act, to discharge the functions and duties of the office, the Lokayukta is not controlled by the State Government in any manner. The State Government is not at all empowered to ask the Lokayukta to discharge its functions or to perform its duties in the manner which it likes. No doubt, the Lokayukta receives his salary from the State Government. But that is not again the sole criteria to hold that he is under the employment of the State. The post of Lokayukta is an independent statutory post and by no stretch of imagination, can it come under the purview of ’employment under the Government’. As such, we find that, the post of Lokayukta is a public authority, which has public or statutory duties to perform and it is in no way under the control of the State Government. We find that the contention of the petitioner that Lokayukta being the post under the Government, as per Section 24(3) of the Protection of Human Rights Act, 1993, the first respondent is disqualified or ineligible, is devoid of merits.”

Decision

While making the above-mentioned observations, the Court dismissed the instant writ petition filed for issuance of a writ of quo warranto on the lack of merits.[S. Subramaniam v. State of Kerala,  2020 SCC OnLine Ker 4284, decided on 6-10-2020]

Case BriefsHigh Courts

Hyderabad High Court: The Court dismissed a writ petition seeking a writ of quo warranto against the respondent to show cause of his authority in holding the office of the Chief Minister of the State of Andhra Pradesh.

The case of the petitioner is that proper statutory guidelines have not been followed by the Governor when inviting the respondent to form a government, therefore, the respondent has no rightful authority to hold the position. The Andhra Pradesh Reorganization Act, 2014 under Section 19(1) states that allocation can be made for only the sitting members of the Legislative Assembly of Andhra Pradesh. The petitioner alleges that this requirement has not been followed by the Governor.

The Court is of the view that the writ petition has been filed to abuse the process of the Court as it has been filed 3 years and 2 months after the appointment of the respondent. Further, the similar process was carried out in the State of Telangana too by the Governor in accordance with Article 164(1) of the Constitution. The petitioner has challenged only one appointment and not both. The Court reasoned that there was no one who fits the criteria of sitting member of Legislative Assembly on the given date due to the Presidential Proclamation. Therefore, the decision taken by the Governor cannot be termed as illegal. On these grounds the writ petition was dismissed. [Pakkala Suribabu v. State of Andhra Pradesh,  2017 SCC OnLine Hyd 271, decided on 23.08.2017]