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Issuance of a writ of quo warranto is a discretionary remedy

A Writ of Quo Warranto can be issued when the holder of a public office has been appointed in violation of constitutional or statutory provisions. Section 16 of the Act lays down the qualifications inter alia for appointment of the Chairman of the State Commission. Clause (a) of sub-section (1) of Section 16 provides that the candidate must be is' or has been a Judge’. The proviso appended thereto, however, mandates consultation by the State Government with the Chief Justice of the concerned High Court.

Concedingly, judicial review for the purpose of issuance of writ of Quo Warranto in a case of this nature would lie :-

(A) in the event the holder of a public office was not eligible for appointment ;
(B) Processual machinery relating to consultation was not fully complied.

The writ of quo warranto proceedings affords a judicial remedy by which any person who holds an independent substantive public office is called upon to show by what right he holds the same so that his title to it may be duly determined and in the event it is found that the holder has no title he would be directed to be removed from the said office by a judicial order. The proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.

It is indisputably a high prerogative writ which was reserved for the use of Crown.

The width and ambit of the writ, however, in the course of practice, have widened and it is permissible to pray for issuance of a writ in the nature of quo warranto.

In Corpus Juris Secundum [74 C.J.S. Quo Warranto ‘ 14], `Quo Warranto’ is defined as under :

“Quo warranto, or a proceeding in the nature thereof, is a proper and appropriate remedy to test the right or title to an office, and to remove or oust an incumbent.
It is prosecuted by the state against a person who unlawfully usurps, intrudes, or holds a public office. The relator must establish that the office is being unlawfully held and exercised by respondent, and that realtor is entitled to the office.”

In the Law Lexicon by J.J.S. Wharton, Esq., 1987, `Quo Warranto’ has been defined as under:

“QUO WARRANTO, a writ issuable out of the Queen’s Bench, in the nature of a writ of right, for the Crown, against him who claims or usurps any office, franchise, or liberty, to enquire by what authority he supports his claim, in order to determine the right. It lies also in case of non-user, or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise having never had any grant of it, or having forfeited it be neglect or abuse.”

Indisputably a writ of Quo Warranto can be issued inter alia when the appointment is contrary to the statutory rules as has been held by this Court in High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (supra) and R.K. Jain v. Union of India and , [ (1993) 4 SCC 119 ]. See also Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. [(2002) 6 SCC 269].

In Dr. Duryodhan Sahu and Others v. Jitendra Kumar Mishra and Others [(1998) 7 SCC 273], this Court has stated that it is not for the court to embark upon an investigation of its own to ascertain the qualifications of the person concerned. [See also Arun Singh alias Arun Kr. Singh v. State of Bihar and Others (2006) 9 SCC 375] We may furthermore notice that while examining if a person holds a public office under valid authority or not, the court is not concerned with technical grounds of delay or motive behind the challenge, since it is necessary to prevent continuance of usurpation of office or perpetuation of an illegality. [See Dr. Kashinath G. Jalmi and Another v. The Speaker and Others (1993) 2 SCC 703].

Issuance of a writ of quo warranto is a discretionary remedy. Authority of a person to hold a high public office can be questioned inter alia in the event an appointment is violative of any statutory provisions.

There concededly exists a distinction in regard to issuance of a writ of quo warranto and issuance of a writ of certiorari. The scope and ambit of these two writs are different and distinct. Whereas a writ of quo warranto can be issued on a limited ground, the considerations for issuance of a writ of certiorari are wholly different.