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TMI Blog2009 (9) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent as Development Commissioner of thirty Special Economic Zones in Andhra Pradesh is, hereby, set aside. The 5th respondent shall henceforth not exercise any of the powers conferred, on Development Commissioner of a Special Economic Zone, under the SEZ Act, 2005. Necessary action shall be taken by the first respondent to appoint a person, who fulfils the statutory qualifications prescribed under Section 11(1) of the SEZ Act, 2005, as the Development Commissioner for the thirty Special Economic Zones in Andhra Pradesh. - Writ Petition No. 2741 of 2009 - - - Dated:- 18-9-2009 - Anil R. Dave and Ramesh Ranganathan, JJ. Shri D. Prakash Reddy, Counsel, for the Appellant. Shri A. Rajasekhar Reddy, A.S.G. and S.R. Ashok, Counsel, for the Respondent. ORDER Is the Director, Software Technology Parks of India (STPI), Hyderabad, (a Society registered under the Societies Registration Act, 1860), an officer of the Central Government not below the rank of Deputy Secretary? It is only if he is, would he be eligible, under Section 11(1) of the Special Economic Zones Act, 2005 (S.E.Z. Act), to be appointed as a Development Commissioner of one or more Special Economic Zones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne its scope. A writ of quo warranto is a writ which lies against the person who, according to the relator, is not entitled to hold an office of a public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show by what authority he is entitled to hold the office. The challenge can be made on various grounds including on grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him from holding such office. (B.R. Kapur v. State of Tamilnadu = 2001 (7) SCC 231). Quo warranto proceedings afford a judicial enquiry in which the person, holding an independent substantive public office or franchise, is called upon to show by what right he holds the said office or franchise. If the inquiry leads to the finding that the holder of the office has no valid title to it, issue of a writ of quo waranto ousts him from that office. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointment to public offices against the relevant statutory provisions. These p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears, they drew salary from the Society, their conditions of service were such as were stipulated under the Rules and Regulations of the Society and that appointment of the 5th respondent as Development Commissioner of S.E.Z, an office of substantive character, was usurpation of public office by a person not qualified under the Statute. 7. On the other hand Sri S.R. Ashok, Learned Senior Counsel appearing for the fifth respondent, would submit that the Central Government had created STPI to carry out governmental functions and had assigned the Directors of STPI the task of acting as its officers , that appointment of Directors of STPI as Development Commissioners of SEZ was a sequel to, and a reiteration of, their previous appointment to the Software Technology Parks and Electronics and Hardware Technology Parks from 1994 onwards, that STPI had adopted various statutory rules namely the Central Civil Services (Classification, Control and Appeal) Rules, the Central Civil Services (Conduct) Rules, the General Financial Rules etc., that the conditions of service of Directors of STPI were at par with Central Government employees, that Directors of STPI were public servants under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts right to suspend and dismiss him, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service and the nature of duties to be performed by the employee, the right to control the manner and method of his doing the work, the right to issue directions, the right to determine the source from which wages or salary are paid and the payment by it of his wages or remuneration. (State of Assam v. Kanak Chandra Dutta - AIR 1967 SC 884; State of Gujarat v. Raman Lal Keshav Lal Soni - AIR 1984 SC 161, Mohanlal Kedia Mathuradas v. S.D. Munshaw - AIR 1981 SC 53; Union Public Service Commission v. Girish Jayanti Lal Vaghela - 2006 (2) SCJ 207. The Office or post must not only be under the control of the State, if must also be open to the State to abolish the post and regulate the conditions of service of the officer. (Lachmi v. Military Secretary to the Government of Bihar - AIR 1956 Patna 398 (DB). In view of the Constitutional Provisions, such as Articles 309 and 311, the position of a Government servant is different from a private employment. (Girish Jayanti Lal Vaghela - 2006 (2) SCJ 207). 11. Once appointed to his p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. There is no master and servant relationship between the Central Government and the 5th respondent. 13. Further, Section 11(1) of the Special Economic Zones Act, 2005 stipulates that, in order to be eligible to be appointed to the post of Development Commissioner of a SEZ, the officer of the Central Government should not be below the rank of a Deputy Secretary. Merely because the pay scales of the Director of STPI is higher than that of a Deputy Secretary to the Government of India does not make him an officer of the Central Government higher in the rank than a Deputy Secretary. The word rank, in its ordinary sense, means grade or status. (N.C. Dalwadi v. State of Gujarat - AIR 1987 SC 1933; P. Ramanatha Aiyer, The Law Lexicon reprint Edition-2002). An employee of a Society cannot be equated either with the grade or the status of an officer of the Central Government. If pay scales were to be the sole criterion for deciding equivalence in rank, nothing prevented Parliament from using the words drawing a pay scale not lower than that of a Deputy Secretary to the Government of India instead of the words not lower in rank than that of a Deputy Secretary to the Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered under the Societies Registration Act), he is an employee of the said Society. Clause 9 of the Memorandum of Association of STPI prescribes the functions and powers of the Governing Council and, under Clause 9.1(d), the Council shall lay down rules regulating recruitment, disciplinary matters, promotion and delegation of powers for appointment to various posts, conditions of service of staff etc., subject to the approval of the Government of India, wherever necessary. Clause 10 relates to the status of STPI which, under clause 10(i), shall be a Society under the Societies Registration Act. Clause 15.4 provides that the Director shall be the technical and administrative head of the Technology Park and shall be responsible for its efficient functioning. Under Clause 15.6, the Director shall exercise powers and functions and perform such duties as may be assigned to him by the Director General with the approval of the Governing Council. Clause 20 provides that all the provisions under all the Sections of the Societies Registration Act, 1860, as applicable to the Union Territory of Delhi, shall apply to the Society. 17. A society, registered under the Societies Registration Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld then submit that the legal frame-work for establishment of STPI is provided under Act 22 of 1992, that, as Designated Officers of the Department of Information Technology, Directors of STPI were authorized to exercise adjudicatory powers under Section 13 read with 11 of Act 22 of 1992, that they were given such powers from the year 2006, that the post of Development Commissioner under the EXIM policy was a post, created in the cadre of the Government of India, that Development Commissioners under the said Act were appointed by way of rules made under Article 309 of the Constitution, that they were officers of the Central Government in matters pertaining to export and import of goods, that the powers of Development Commissioner were conferred on Chief Executives of STPI by the notification issued by the Government of India dated 22-3-1994, that Directors of STPI were discharging the functions of Development Commissioner in IT related export oriented units and they should, therefore, be considered to be Officers of the Central Government at least by implication. He would submit that the functions of the Development Commissioner, as prescribed in the EXIM policy, were sovereign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the schemes made thereunder, the said Act does not require the officer so authorized to be an officer of the Central Government. Section 2(a) of Act 22 of 1992 defines adjudicatory authority to mean an authority specified in, or under, Section 13. Section 3 empowers the Central Government, by order published in the Official Gazette, to make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. Section 5 empowers the Central Government to formulate and announce, by notification in the Official Gazette, the export and import policy as also to amend the policy. Section 7 prohibits a person from making any import or export except under an Importer and Exporter code number granted by the Director General or the officer authorized by the Director General in this behalf. By way of a notification, the Director General authorized several officers, including the Development Commissioners of a Free Trade Zone or an Export Processing Zone, to exercise powers under Section 7 of the Act. The words used in Section 7 are the officer authorized by the Director General . It is not necessary that such officers should be officers of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred on, and the functions are to be discharged by, any officer who need not, necessarily, be an officer of the Central Government. 26. Reliance placed by Sri S.R. Ashok, Learned Senior Counsel, on the Ministry of Commerce notification dated 24-10-1997 whereby the Central Government, in exercise of its powers under Article 309 of the Constitution of India, framed rules for regulating recruitment to the post of Development Commissioner, is misplaced. It is evident from the Noida Export Processing Zone (Group A and B posts) Recruitment Rules, 1997, notified on 24-10-1997, that Development Commissioners of the Noida Export Processing Zone are required to be appointed cither by deputation and transfer from the Central Government or by promotion from the post of Departmental Joint Development Commissioners. Under these rules, only officers of the Central Government are eligible to be appointed as Development Commissioners of the Noida Export Processing Zone. The petitioner is neither an officer of the Central Government nor has he been appointed as the Development Commissioner of the Noida Export Processing Zone. Is Section 11(1) of the SEZ Act, 2005 capable of more than one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and reveals the intention of the framers, (C.I.T. v. T.V. Sundaram Iyengar (P) Ltd. - 1976 (1) SCC 77). It would be impermissible to in aid any external aid of construction to find out the hidden meaning. A statute should be construed according to the intention expressed in the Statute itself (D.D. Joshi v. Union of India - (1983) 2 SCC 235). 30. Resort can be had to the legislative intent for the purpose of interpreting a provision of law, when the language employed by the legislature is doubtful or susceptible of meanings more than one. However, when the language is plain and explicit and does not admit of any doubtful interpretation Courts cannot, by reference to an assumed legislative intent, expand the meaning of an expression employed by the legislature and therein include such category of persons as the legislature has not chosen to do (Ombalika Das and another v. Hulisa Shaw - (2002) 4 SCC 539). Unless there is any ambiguity it would not be open to the Court to depart from the normal rule of construction which is that the intention of the Legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner from 1994 onwards and that no deviation could be assumed unless Parliament indicated it by positive language. 33. The Special Economic Zones Act, 2005 is an Act to provide for the establishment, development and management of Special Economic Zones, for the promotion of exports for matters connected therewith or incidental thereto. Section 2(e) defines the Board to mean the Board of Approval constituted under sub-section (1) of Section 8. Section 2(h) defines Development Commissioner to mean the Development Commissioner appointed for one or more Special Economic Zones under sub-section (1) of Section 11. Sections 8(1) and (2), in juxta-position with Sections 11(1) to (3) of the SEZ Act, read thus : Sections (1) and (2) Sections 11(1) to (3) The Central Government shall, within fifteen days of commencement of this Act, by notification, constitute, for the purposes of this Act, a Board to be called the Board of Approval. The Board shall consist of :- (a) an officer not below the rank of an Additional Secretary to the Government of India in the Ministry or Department of the Central Government. dealing with commerce-Chairperson, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner in the performance of his functions in the Special Economic Zones established by a Developer (other than the Central Government) under this Act on such terms and conditions as it deems fit. (3) Every Development Commissioner, officer and other employee shall be entitled to such salary and allowances and subject to such terms and conditions of service in respect of leave, pension, provident fund and other matters as may, from time to time, be specified by the Central Government. 34. Section 8 (2) (h) of the SEZ Act enables the Central Government to nominate a Professor from either the Indian Institute of Management or the Indian Institute of Foreign Trade of which are Societies registered under the Societies Registration Act, 1860), as an Ex-officio member of the Board. While making employees of certain Societies eligible to be appointed as members of the Board of Approval, Parliament, in its wisdom, has, however, chosen not to make employees of the STPI Society eligible to be appointed as Development Commissioners of SEZ. Similarly, while sub-section (1) of Section 11 of the SEZ Act requires the Central Government to appoint only its officers, not below the rank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the pervasive control of the Central Government . Accepting such submissions, would require the words an officer within the pervasive control of the Central Government whose scale of pay is not less than a Deputy Secretary to the Government of India to be inserted in Section 11(1) of the SEZ Act in the place of the words its officers not below the rank of Deputy Secretary to the Government of India . 38. It is not for courts to supply words to or delete words from Section 11(1) of the SEZ Act. A construction which requires, for its support, addition or substitution of words, or which results in rejection of words, has to be avoided, (Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests - AIR 1990 SC 1741, Shyam Kishori Devi v. Patna Municipal Corpn. - AIR 1966 SC 1678, A. R. Antulay v. Ramadas Sriniwas Nayak - (1984) 2 SCC 500, Dental Council of India v. Hari Prakash - (2001) 8 SCC 61, J.P. Bansal v. State of Rajasthan - (2003) 5 SCC 134 and State of Jharkhand v. Govind Singh - (2005) 10 SCC 437, especially when a literal reading thereof produces an intelligible result. (Delhi Financial Corpn. v. Rajiv Anand - 2004 (11) SCC 625. 39. The construction sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word used in the Act, it may be referred for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy. (Sodra Devi - AIR 1957 SC 832; Aswani Kumar Ghose v. Arabinda Bose - AIR 1952 SC 369; State of West Bengal v. Subodh Gopal Bose - AIR 1954 SC 92. It is evident, from the Statement of Objects and Reasons, that the SEZ Bill was proposed in order to give a long term and stable policy framework with minimum regulatory regime and to provide an expeditious and a single window clearance mechanism. A literal construction, of Section 11(1) of the SEZ Act, that only officers of the Central Government not below the rank of Deputy Secretary can be appointed as Development Commissioners of SEZ, would not fall the objects for which the SEZ Act was made. Sri S.R. Ashok, Learned Senior Counsel would submit that, in enacting Section 11(1), Parliament did not intend to make a departure and that the doctrine of contemporanea expositio, should be applied. Reliance is placed by the learned Senior Counsel on the letter addressed on 23-8-2007 by the Director, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the SEZ Act, it is an Officer of the-Central Government in the rank of the Deputy Secretary and above, who alone is eligible to be appointed as a Development Commissioner for a Special Economic Zone. The rule of construction, by reference to contemporanea expositio, must give way where the language of the statute is plain and unambiguous. (K.P. Varghese - (1981) 4 SCC 173. 46. Sri. S.R. Ashok, Learned Senior Counsel would submit that if only bureaucrats, recruited through the Public Service Commission, were appointed as Development Commissioners it would lead to an anomalous situation in as much as the system would be riddled with bureaucratic rigidities in which the manager of the IT/ITES SEZ (Development Commissioner) would not be able to contribute much to the system envisaged under the SEZ Act. He would submit that the words its officers , used in Section 11 of the SEZ Act, must be liberally construed to include persons such as Directors of STPI because of their technical expertise and administrative qualifications and as their appointment is in public interest. He would submit that, if there were two possible meanings, while interpreting a statutory provision, that altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absurdity or obvious injustice, that within two constructions that alternative is to be chosen which would be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion in the working of the system. 50. In our opinion, the language of Section 11(1) is capable of only one meaning and that meaning does not lead to any absurd or mischievous result but to a sensible and just result which is consonant with the clear objective of the Act. If the language of a statute be plain, admitting of only one meaning, the legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it may lead to absurd or mischievous results (Johnson v. Morton - (1978) 3 All ER). 51. If the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of the consequences. The expression used in the statute declares the intent of the legislature. The construction must not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2009, similar to the present writ petition, was dismissed by the Delhi High Court on 13-1-2009. 53. Sri. A. Rajasekhar Reddy, Learned Assistant Solicitor General, would contend that the petitioner had been setup by some persons who did not want the SEZ (IT/ITES) to be administered by the Jurisdictional Directors of STPI and that the fifth respondent, who had been appointed as a Development Commissioner, was an expert and a specialist in the statutory administration of IT/ITES export oriented schemes. He would rely on Statesman (PVT.) Ltd. v. H.R. Deb - AIR 1968 SC 1495; A.N. Sastry v. State of Punjab - 1988 Supplement SCC 127 and B. Srinivas Reddy v. Karnataka Urban Water Supply Drainage Board Employees Association - 2006 (11) SCC 731 to submit that, in quo warranto proceedings, Courts should be slow to pronounce upon the matter unless there was a clear infringement of the law. 54. On the other hand Sri D. Prakash Reddy, Learned Senior Counsel, would submit that this Court would be justified in scrutinizing the qualifications of the person whose appointment to a public office was called in question as it was a matter of public importance and that the locus standi of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered to be sufficient qualification for appointment to the post of Deputy Director, that there was no challenge to the appointment of the appellant to the post of Deputy Director, that the prescribed qualifications was the same for Directors and Assistant Directors and, as the appellant held the post of Deputy Director which was in between the two, it could not said that he did not possess the requisite qualifications. The Supreme Court further held that there was material on record to show that the appellant had obtained his degree on completion of the five year course, that he had undergone study as a regular student for three years in the first instance and for the remaining two years he was directly under a qualified Professor though it was not a study in a regular institution and, after five years, he had obtained the degree from a recognized University. In such circumstances, the Supreme Court, found it difficult to agree with the reasons given by the High Court for its conclusion that, the appellant did not have the qualification prescribed the Rules. In B. Srinivasa Reddy - 2006 (11) SCC 731, appointment of the appellant as Managing Director of the Karnataka Urban Wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person who is not legally entitled to hold an office should not be permitted to hold it. (Venkataraya v. Sivarama Prasad - AIR 1961 AP 250 (APHC DB)). A writ petition, even at the instance of a busy body, for issuance of a writ of quo warranto would be maintainable. (N. Kannadasan - JT 2009 (7) SC 601). 59. In A.N. Shashtri - 1988 (Supplement SCC 127), and B. Srinivasa Reddy - 2006 (11) SCC 731 the Supreme Court held that a writ of quo warranto should be refused where it is the outcome of malice or ill will and that an imposter coming before the Court invoking a public law remedy at, the hands of a Constitutional Court suppressing material facts has to be dealt with firmly. 60. On the other hand, in Dr. Kashinath G. Jalmi v. The Speaker -(1993) 2 SCC 703; and in N. Kannadasan - JT 2009 (7) SC 601, the Supreme Court held 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. A writ of quo warranto is a writ which merely asks the question as to whether ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justify the fifth respondent continuing in office as his appointment falls foul of Section 11(1) of the SEZ Act, 2005. 64. As a result, the writ petition is allowed and the order of the first respondent, published in Gazette of India dated 12-11-2007, appointing the 5th respondent as Development Commissioner of thirty Special Economic Zones in Andhra Pradesh is, hereby, set aside. The 5th respondent shall henceforth not exercise any of the powers conferred, on Development Commissioner of a Special Economic Zone, under the SEZ Act, 2005. Necessary action shall be taken by the first respondent to appoint a person, who fulfils the statutory qualifications prescribed under Section 11(1) of the SEZ Act, 2005, as the Development Commissioner for the thirty Special Economic Zones in Andhra Pradesh. No costs. 65. After pronouncement of the order, a request is made both by Sri S.R. Ashok, learned Senior Counsel appearing for the 5th respondent and Sri A. Rajasekhar Reddy, learned Assistant Solicitor General, to stay the operation of the order for a period of four weeks to enable them to approach the Hon ble Supreme Court. We consider it appropriate to direct stay of the operation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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