Nagpur | March 16, 2016: The Nagpur bench of Bombay High Court has ruled that only an office created by Constitution of India or Legislature could be termed a 'public office'. It dismissed a PIL by a senior citizen challenging reappointment of Mineral Exploration Corporation Ltd (MECL) chairman-cum-managing director (CMD) after attaining superannuation.

"For an office to be a public office, it is necessary that it is conferred by law, has a fixed tenure and power to exercise some portion of government's sovereign powers. The position must be created by Constitution, legislature or through authority conferred by the latter. The duties and powers must be defined directly or impliedly by legislature or through legislative authority," a division bench of justices Bhushan Gavai and Pradeep Deshmukh held.

Petitioner Manohar Sahare (69), retired accountant from MECL, had sought 'Writ of Certiorari (Ordering a lower court to deliver its record so that the higher court may review it)' for quashing a decision of Union mines secretary to reappoint Gopal Dhavan as CMD of Nagpur-headquartered public sector company. He also sought a 'Writ of Quo Warranto' (That challenges an individual's right to hold an office or governmental privilege) against the CMD.

He contended that Dhavan's reappointment for two years, after attaining 60 years age, was totally impermissible in view of the 'Handbook for Personnel Officers' published by Department of Personnel and Training (DOPT) and containing instructions on grant of extension of service/reemployment to central government employees beyond the age of superannuation.

MECL was accorded separate status under the provisions of Mines and Minerals (Development and Regulation) Act, 1957. Therefore, it doesn't require licence for prospecting or mining, and exercises sovereign functions for related activities. Since Dhavan was appointed as CMD of MECL, that exercises sovereign functions, its office would fit within the ambit of 'public office', Sahare argued.

The judges pointed out that except a reference to Section 4 of the Mines and Minerals (Development and Regulation) Act, 1957, there is no reference that MECL was enacted through legislature. "When MECL itself is not a creature of statute, but a government company incorporated under provisions of the Company Act, there could be no question of its CMD's office being considered as public one. We don't find that the corporation discharges any sovereign function. The only factor it's being exempted from obtaining prospecting licences, cannot lead to the conclusion it exercises some sovereign functions," they observed.

They noted that if CMD's was not public office, then court would not be entitled to invoke a Quo Warranto jurisdiction. "We have no hesitation in holding that neither MECL is a creature of statute nor office of its CMD is a public one. Subsequently, the writ of Quo Warranto would not be tenable. PIL at the behest of person who is not aggrieved would not be tenable," the court said rejecting the case.

What HC said

• No reference that MECL is enacted through legislature
• It is govt organization incorporated under Companies' Act
• No question of CMD's office being considered as public
• MECL does not discharge any sovereign function
• PIL at the behest of unrelated person not tenable

What is 'Public office'

Essential characteristics of 'public office' are -- (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government. Key element of such test is that 'officer' is carrying out sovereign function. Essential elements to establish public position as 'public office' are position must be created by Constitution, legislature or through authority conferred by legislature, portion of sovereign power of government must be delegated to position, duties and power must be defined, directly or impliedly, by legislature or through legislative authority, duties must be performed independently without control or superior power other than law, and position must have some permanency and continuity.

(Source: http://timesofindia.indiatimes.com/)