D. K. KAPUR J.
(1) THERE are two Letters Patent Appeals Nos. 104/81 and 79/81) against the judgment in Civil Writ Petition No. 1269 of 1980, whereby a writ of quo warranto was granted holding that Shri J. R. Anand, appellant in L. P. A. No. 104/81, was not validly appointed in an ad-hoc capacity as Deputy General Manager of the Delhi Transport Corporation. The said Writ Petition was filed by a Registered Trade Union and one of the disadvantages we have faced in dealing with these two appeals is that the original petitioners have chosen to remain absent in the hearing. The result is that the only respondent present is the appellant in the other appeal. In other words, both the parties before us are in favour of the appeal being allowed.
(2) THE Writ Petition was concerned with the appointment of Shri J. R. Anand, who had previously been removed from service after an inquiry. Concerning this removal, he had instituted Civil Writ Petition No. 39 of 1979. There after, a representation was made by him on 16th January, 1980, which was sent by the Delhi Transport Corporation for examination and comments to Mr. A. N. Mulla, Senior Advocate, A recommendation was received that the order passed in the inquiry against Shri J. R. Anand was vitiated on the ground that it was a case of victimisation On 30th June, 1980, the Board of the Delhi Transport Corporation accepted the recommendations of Mr. A. N. Mulla and was of the opinion that Shri J. R. Anand should be re-instated us Traffic Manager. However, it was noted that the Central Vigilance Commissioner had been involve and, therefore, a reference to the Ministry of Shipping and Transport should be made. Pending the Government's clarification, the Chairman cum-General Manager was authorised to make use of the service of Shri J. R. Anand on an ad-c basis in an appropriate capacity.
(3) ACTING on this basis, Shri J. R. Anand was appointed as Deputy General Manager with effect from 30th July, 1980, on an ad-hoc basis on a basic salary of Rs. 1,620. 00 plus allowances. This order led to the institution of the Writ Petition.
(4) AFTER dealing with varlous questions the learned Single Judge came to the view that this amounted to a review of the order removing Shri J. R. Anand from service and this was not in accordance with the principle on which reviews were to be granted. It was also noted that the regulations did not allow a person of more than 45 years of age being recruited. Also, it was observed that a post of Deputy General Manager could not be created. In short, it was held that Shri J. R. Anand's appointment on an act-hoc basis was not valid.
(5) WE have been taken through the Regulations and various Acts of Parliament relevant to the powers of the Delhi Transport Corporation. We find that under Section 14 of the Road Transport Corporations Act, 1950, every Corporation has powers under Section 14 (2), which are stated as follows :-
"a Corporation may appoint such other officers and servants as it considers necessary, for the efficient. performance of its functions. "
There is no restriction in this regarding the type of a person who can be appointed or removed, as the case may be. There is a specific recruitment regulation which appears under the heading Delhi Road Transport Authority (Conditions of Appointment and Service. Regulations) 1952. This Recruitment Regulation No. 5 states:-"subject to the condition that neither a person disqualified under Section 17 of the Delhi Road Transport Authority Act, 1950, nor an employee of the Authority dismissed from service for misconduct by the Authority, nor an employee of the Central and State Government who has been debarred from employment in any Government Department, shall be taken into employment and further subject to such standing orders as maybe framed by the General Manager, with the approval of the Delhi Road Transport Authority regarding, age academic and technical qualifications, physical fitness, trade tests procedure for invitation of applications. . . . . . . . . . . . :. . . . . . . . . . . . . . '.
The impediment disclose by this regulation is to the re employment of a person who has already been dismissed for misconduct by the Authority. It may be noted that Shri J. R. Anand was removed for misconduct and he had filed a Writ Petition. During the pendency of that Writ Petitioh and before it was decided by the Court; he had moved the representation. In our view, it was even possible for the Corporation to accept the representation and possibly to re-instate the appellant but, it appears that the Corporation wanted to get the advice of the Central Government and in the meantime decided to appoint Shri J. R. Anand on an ad hoc basis. This is not prohibited by the Regulation just reprodueed. There was no other legal bar to the reappointment.
(6) IT may be that it was unusual case, in as much as a person who has been either removed, discharged Or dismissed from Service under a particular Authority is usually not re-employed by that Authority. However, when the Authority came to, the conclusion after getting legal advice that this Was a case of victimisation, it could be a case in which they could re-instate. There have been instances like this in the past where on a representation to the President Or Other Superior authority, persons who have a grievance have had their grievances redressed. That is the position, usually in the Case of Central Services. Here, we have a statutory Corporation; in which there is no Other body except the Authority itself. There is, in our view; no legal impediment to an order appointing Shri J. R. , Anand on an ad-hoc basis'.
(7) THERE is one point which needs to be mentioned here regarding the age at which a person can be appointed to the post of Deputy General Manager. The learned S ingle Judge has taken the age from the Recruitment Rules to be 45 years or less, which is the age for a Traffic Manager; though it appears to be relaxable in the case of particular individuals. There is no regulation specifying the maximum age of a Deputy General Manager, but the learned Single Judge assumed that the. same age limit Would apply. We may note that when very Senior posts are involved; usually the person recruited is likely to be much older, because this is Practically the last post which. Such a person can hold prior to retirement. It may be that in the case of Traffic Manager and Deputy General Manager the pay scale is same; so the age could be taken as being about the Same. But considering that there is no specific provision; it would be for the Board to decide what is the principle on which a person may hold that post. In the absence of a restriction regarding age, we do not see how age limit can be incorporated. Furthermore, this appointment is on an ad-hoc, so it may be that the age limit for ordinairy recruitment may not apply, even if it exists. SO, this is no ground for holding Shri Anand's appointment to be invalid:
(8) THERE is another question which has arisen in this particular appeal which is as to the scope of writ of quo warranto. No doubt, the writ is available for challenging appointments. The controversy that requires examination is whether such a writ is also available in the case of statutory Corporations and particularly regarding persons who are holding posts which cannot be described as statutory posts. The posts in such cases are created by statutory authorities. In this sense, there is hardly any difference between the Road Transport Corporation and any privately formed company under the Companies Act. Both a Corporation as well as a limited company are essentially creatures of Statute but, it does not follow that every person appointed by such a Corporation which is created by an Act of Parliament or under an Act of Parliament, is also a statutory authority. It does not strike us that the Deputy General Manager is holding a statutory post. We would think that a writ of quo warranto is not normally available in such cases. A passage from Halsbury's, which is to be found in para 274 of Volume 11, Third Edition and para 170, Volume I, Fourth Edition of the Halsbury's Laws of England, can be reproduced here with advantage Th
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at passage reads :- "an information in the nature of a quo warranto lay, and an injunction such as is described in the last preceding paragraph will be granted, in respect of any particular office only if that office satisfies certain conditions. The office must be held under the Crown or have been created by the Crown, either by charter alone or by statute. . . . . . . . . . . . . . . Several examples are set out there in regarding when the writ lies and when it does not. It does not appear that this particular post was created by any Statute. The Corporation created by a Statute created the post. and, therefore, the writ of quo warranto would not primarily lie. As the respondents are not present, this may be treated as per curiam and not as a final conclusion" (9) IN the result, we would allow both the appeals and set aside the judgment under appeal. There will be no order, as to costs.