1. In the present petition, the petitioner seeks a direction upon the respondent authorities to hold that the posts of Director Project Engineers, Assistant Engineers and Consultants do not exist as per the Gujarat Council of Primary Education Service Rules and Regulations, 1996 and that the appointments of the private respondents to the concerned posts are non est.

In the alternative, the petitioner also seeks quashing and setting aside appointments of the private respondents to the posts of District Project Engineers, Assistant Engineers and Consultants. A further prayer is also sought to direct the respondent authorities to immediately take action against the office-bearers of the respondent-Council for undertaking an illegal recruitment process appointing the private respondents.

2. The foregoing prayers are premised by the petitioner on the following facts:

2.1 The Central and State Government had introduced "Sarva Shiksha Abhiyan" (hereafter referred to as "SSA") in 1995 with a laudable object for the upliftment of elementary education across India. The Gujarat Council of Elementary Education (GCEE), formerly known as the Gujarat Council of Primary Education (GCPE) was registered on 08.11.1995 under the provisions of the Societies Registration Act, 1860 and the Bombay Public Trusts Act, 1950. The Gujarat Council of Elementary Education was established as a State level society for implementing District Primary Education Programmes. Under Sarva Shiksha Abhiyan (SSA), all 33 Districts and 04 Municipal Corporations in the Gujarat State are being covered.

2.2. The Rules and Regulations were framed in the year 1996 by the Council, which were named as the Gujarat Council of Primary Education Service Rules and Regulations, 1996 (hereafter referred to as "the 1996 Rules" or "the Rules"). The posts were created at State Level, District Level and Taluka Level.

2.3 It is stated that the lower level Engineers working under the Council were appointed after following the due procedure. The Engineers, who worked at lower level are called Technical Resource Persons or TRPs. In the case of TRPs, the advertisements were made, oral/written examinations were conducted and thereafter, the appointments were made. The appointments are made on contractual basis. It is alleged that the Technical Resource Persons (TRPs) work at the lowest level i.e. Taluka Level are appointed by following the procedure, whereby the advertisements were issued and after conducting oral and written examinations, whereas at the middle and higher post of District Project Engineers and Assistant Engineers, no advertisements were made and they are appointed at the instance of few persons and upon the recommendations of influencing persons.

2.4 It is the case of the petitioner that the order was passed on 15.03.2012 by the General Administration Department (GAD) of the State of Gujarat. It was held in the said order that for appointment of any employee after retirement on contractual basis for any post, including consultant, advisor, etc., the prior permission of General Administration Department, Financial Department, Chief Secretary, concerned Minister and then of the Hon'ble Chief Minister would be required. The petitioner preferred an application under the Right to Information Act on 20.08.2016. The petitioner sought various information from the Public Information Officer, State Project Director of the Gujarat Council of Elementary Education.

2.5 The case of the petitioner is premised on the reply given by the Public Information Officer, Sarva Shiksha Abhiyan, Gandhinagar on 30.11.2016 to the application given by the petitioner on 20.08.2016, wherein it was stated that no advertisement was given for making appointments of District Project Engineers.

2.6 Leaned Advocate Mr. Saurabh Mehta appearing on behalf of the petitioner has submitted that the appointments and promotions have been made either upon the recommendations or to facilitate various oblique motives. It is submitted that a representation was made by the petitioner on 01.12.2018 to the respondent authorities with respect to the large scale illegalities committed by the respondent authorities in appointing District Project Engineers even though the appointees are not possessing adequate educational qualifications or work experience.

2.7 Thereafter, a representation was made on 14.12.2018 by the petitioner, whereby it was pointed out that the post of Assistant Engineers does not exist as per the Rules and ineligible persons are appointed for vested interest. A representation was made on 15.12.2018 by the petitioner, whereby it was pointed out that the persons who were appointed after retirement have not been appointed after following the procedure and no prior permission was obtained, which is mandatory as per the administrative orders passed by the State Government itself.

2.8 The writ petition in the nature of Public Interest Litigation was filed before this Court being Public Interest Litigation No. 248 of 2018, whereby this Court passed order dated 26.12.2018 permitting the petitioner to convert the petition with necessary amendments. It is submitted by learned Advocate Mr. Mehta appearing for the petitioner that since there are large scale irregularities committed in filling up the posts in question and there are no rules framed, the posts may be abolished since there is wastage of public money.

3. In response to the aforesaid submissions, learned advocate Mr. Dipak Dave appearing for the respondent Nos. 7, 8, 10, 12, 13, 17, 21, 28, 32, 34, 38, 42, 44, 47, 49, 57 and 61 to 64, after making oral submission has also tendered a written submissions. It is submitted that the petitioner is praying for issuance of writ of quo warranto and hence, the writ petition is not maintainable. It is submitted the private respondents are serving on the posts of District. Programme Engineer (D.P.E.) or Assistant (c) Engineer (A.E.). So far as respondent Nos. 64 and 63 are concerned, they are not the employees but are invited members and are working as consultants. Thus, it is submitted that they are not the employees of the respondent society, and the chart of such employees reveals that they are not working on any public post. It is thus, submitted that the essential requirement for issuance of writ of quo warranto is that the employee should be working against the public office. It is submitted that the respondent society is a society registered under the provisions of the Societies Registration Act and is also registered with the Gujarat Public Trusts Act. Thus, the respondent No. 5 society cannot be said to be a "State" within the meaning of Article 12 of the Constitution of India. It is submitted that neither the employees can be said to be holding a public office nor the respondent No. 5 can be said to be "State" within the meaning of Article 12 of the Constitution of India and, therefore, a writ of quo warranto may not be issued. It is also asserted by the learned Advocate that the petition Is actuated with mala fide. Earlier the petitioner was appointed by one Shrey Consultancy in the year 2013-14 to 2015-16, which had its contract with respondent No. 5. The petitioner was serving with respondent No. 5 through consultant and just to harass the employees and respondent No. 5, this petition has been filed after several years. It is submitted that as can be seen from the chart, the employees are serving for more than ten years and after several years of services, now their service has been questioned. Thus, it is submitted that the petition may kindly be rejected on the ground of delay, latches and acquiescence.

4. Learned Advocate Mr. Dipak Dave further submitted that even otherwise also, the petitioner has clearly stated in his petition at paragraph No. 4.9 that the Technical Resources Persons (TRP) are appointed by following the procedure, thereby the advertisement shall be issued, oral and written examinations are conducted. All the present respondents were initially appointed as TRP. While appointing all the employees-present respondents as TRP, the respondent No. 5 invited applications from public at large by issuing advertisement. After requisite experience as TRP, the selection committee would call the said TRPs and looking to their performance, TRPs shall be appointed either as A.E. (Assistant Engineer) or D.P.E. (District Project Engineer). It is pertinent to note that for the purpose of Diploma holders, the experience is of three years' whereas in case of Bachelor of Engineer, the experience of TRP is of two years. Learned Advocate has also pointed out that in the executive council meeting dated 27.11.1998, the State Project Director was delegated with the power to sanction the posts of Engineers as per the requirements and make appointment as and when required.

5. Learned Senior Advocate Mr. Prashant Desai for the respondent Nos. 6, 11, 15, 22, 24, 25, 29, 31, 35, 37, 40, 43, 46, 50, 52, 55, 58 and 60 tendered a written submission and submitted that the petitioner has filed the above mentioned petition, at the initial stage as Public Interest Litigation. It is submitted that all 18 respondents are the qualified Engineers either Diploma holders or the Degree holders and they are required to look after the structural aspects of the primary schools and the hostels. It is submitted that the entire SSA Project is funded by the grant of Central Government as well as the State Government and this was specifically for the education for girls of SC/ST/OBC/Minority and BPL and the entire project is a temporary project in nature, and there is no permanency of the project.

6. It is submitted that the respondent No. 5 had invited the applications several times before the appointments are made on contractual basis and in some cases even the written exams are taken before giving appointment to the Civil Engineers. It is further submitted that in the set-up of respondent No. 5 the Engineers are posted on Taluka Level, District Level and also on State Level. I state that the respondent No. 5 also appointed 3rd party agency for over all provision for the work done by the Civil Engineers at Taluka Level.

7. Learned AGP Mr. Ronak Raval has submitted that the Gujarat Council of Primary Education Sarva Siksha Abhiyan used to issue Advertisements for the appointments of TRP's where the qualification is fixed as B.E. (Civil) or Diploma in Civil Engineering. Various advertisements were issued and pursuant thereto, Civil Engineers are appointed and out of the said Civil Engineers the District Project Engineers and Assistant Engineers are being selected. It is submitted that all the appointments are contractual in nature and the concerned authorities are empowered to regulate such posts and appointments. It is submitted that the entire project is temporary in nature and with a view to see that there is effective implementation of the policy of the State Government different posts are created and appointments are made on contractual basis. Thus, it is submitted that the writ petition may be dismissed.

8. I have considered the rival submissions advanced by the learned advocates appearing for the respective parties to the lis.

9. As noted hereinabove, the petition was initially filed as Public Interest Litigation seeking writ of quo warranto, however, the Division Bench vide order dated 26.12.2018 allowed the petitioner to convert the same as captioned writ petition. The petitioner has prayed for declaring the posts of District Project Engineers, Assistant Engineers and Consultants as non est, and in the alternatively, he is seeking quashing and setting aside the appointments of the private respondents.

10. It is alleged by the petitioners that the aforementioned posts are illegally filled in for vested interest without following any procedure. It is submitted that there are no rules framed for filling up such posts and hence, the respondent State authorities are filling up such posts on their whims and fancies.

11. I may first examine the issue with regard to the maintainability of the writ petition for issuance of quo warranto since the private respondents have raised such issue. The Constitution Bench of the Supreme Court in the case of University of Mysore, H.H. Anniah v. C.D. Govind Rao, AIR 1965 SC 491 [LQ/SC/1963/200] , has prescribed the parameters for the issuance of a writ of quo warranto, as under:

"6 The Judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.

7 As Halsbury has observed:

"An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."

Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."

12. Thus, the Supreme court has declared that a writ of quo warranto can issue against the holder or usurper of a "public office" so that he/she can be ousted from such post. In the present case, the private respondents are appointed to the post of Taluka Resource Persons (TRP) at Taluka level, and thereafter, to the posts of District Project Engineers and Assistant Engineers on contractual basis. It is the case of the State authorities that the said posts are regulated by "The Gujarat Council of Primary Education Service Rules and Regulations, 1996." The genesis of the posts lies in the Sarva Siksha Abhyaan (SSA), which was introduced in the year 1995 with a commendable object for the upliftment of elementary education across India. The Gujarat Council of Elementary Education (GCEE), formerly known as Gujarat Council of Primary Education (GCPE) was registered on 08.11.1995 under the provisions of the Societies Registration Act, 1860 and the Bombay Public Trusts Act, 1950. The Gujarat Council of Elementary Education was established as a State level society for implementing District Primary Education Programmes. Under Sarva Shiksha Abhiyan (SSA), all 33 Districts and 4 Municipal Corporations in Gujarat are being covered. Thus, indisputably, all the private respondents can be said to be holder of "public office" since their appointments stem out of the Rules and Regulations framed by the State. They all are exercising government functions and are conferred the duties for executing the policy and scheme of the Government. Though, the posts on which the respondents are working are not permanent and contractual, such posts since are created for public good and there is direct nexus between the nature of work and public at large, it cannot be said that the private respondents are not holding "public office". Hence, in wake of the aforementioned undisputed facts, the petition seeking issuance of writ of quo warranto questioning the appointments on such posts is maintainable under Article 226 of the Constitution of India.

13. Having held that the present writ petition is maintainable questioning appointments of the private respondents, the issue which now remains to be examined, is whether the prayers made in the writ petition seeking writ of quo warranto declaring the posts in question as non est and also setting aside the appointments of the private respondents, can be accepted or not.

14. It is the case of the petitioner as mentioned in paragraph No. 4.9, that the private respondents though are appointed on the post of TRP by following the procedure after issuance of advertisements and oral examination, their further appointments on the post of District Project Officer and Assistant Engineers are made illegally and upon recommendations of influence persons. It is alleged by the petitioner that all the appointments are made de hors the Government instructions issued vide various circulars and there is no existence of such posts in the Regulations, 1996.

15. It is not in dispute that the State Government approved "The Gujarat Council of Primary Education Service Rules and Regulations, 1996." on the overall advice of the Central government. Chapter-II of the Regulations stipulates "Management Structure". Regulation (4) specifies "Categories of Posts" which are as under:

Chapter-III of the Regulations provides the mode and manner of recruitment. Regulation 8 reads as under:

"(8) Appointment by Contract:

The competent authority may also appoint a suitable person to any post on individual service contract for a specific period renewable from time to time. The service condition of the persons so appointed on contract shall be governed by the terms of respective contract."

16. It is not in dispute that the private respondents are qualified Engineers either Diploma holders or the Degree holders and they are appointed to supervise the structural status/repairs of the primary schools and the hostels. The Assistant Engineers are required to prepare the project and also to prepare the map/plans with estimate and tender documents with regard to the constructions and repairs of the schools and hostel buildings. It is pertinent to note that Gujarat Council of Elementary Education Memorandum of Association was formed to pursue the specific objects of Gujarat Elementary Education Projects. Accordingly, the "Rules of the Gujarat Council of Elementary Education" were framed and as per Rule 1(iii) they have come into force from the date on which the Gujarat Council of Elementary Education is registered under the Registration Act, 1860. Rules 36 and 47 of the Rules reads as under:

"36. It shall be the responsibility of the Executive Committee to endeavour to achieve the objects of the Council and to discharge all its functions. The Executive Committee shall exercise all Administrative, Financial and academic authority in this behalf, including powers to create posts of the description and make appoints thereon in accordance with the Regulations.

47. Subject to any specific directions of the Council and keeping in view the overall advice of the Central Government and the State Government, the Executive Committee shall have powers to frame and amend Regulations, not inconsistent with these rules for the administration and management of the affairs of the council and without prejudice to the generally of the provision, such Regulations may provide for the following matters:

(i) Service matters to officers and staff including creation of posts, qualifications, selection, procedure service conditions, pay and emoluments, discipline and control rules;"

It appears that the Regulations, 1996 were framed by the Council in exercise of powers conferred under Rule 47(i) of the Elementary Education Rules. The aforesaid Rules envisage that the Executive Committee of the Council is empowered to create posts for effective implementation of the ideology of the entire project. It is admitted by the petitioner, that the appointments of the private respondents on the post of TRP is in accordance with law, but thereafter they are posted on the posts in question without any authority of law. The said submission of the petitioner does not merit acceptance in view of the specific power reserved in the Executive Committee of the Council to create any post. Respondent no. 5, in its affidavit has specifically contended that the Executive Committee of the Council vide Resolution dated 20.10.1997 approved the proposal of creation of post of TRP for the project on consolidated salary and accordingly the Civil Engineers like the private respondents were appointed. It appears that Regulation 9 of Regulations, 1996 was amended. The same reads as under:

"(9) Selection of Committee and Appointing Authorities:

"The State Project Director shall be the authority to establish the Selection Committee for all the posts under State Project Office and the District Project offices. The powers for appointment shall also remain with the State Project Director."

17. Thus, the State Project Director was authorized to establish a Selection Committee for all posts under the State Project Offices. Thereafter, the State Project Director vide Office Note dated 10.10.2000 established a selection committee for appointment on the posts of AE and DPE and the selection criteria was also prescribed. All the TRPs, who are found suitable as per the selection criteria, are subsequently appointed as AE's and DPE's, on contractual basis and if they do not perform as per the standards, they are again posted as TRP's. All the appointments to the aforesaid posts in question are made contractual and none of the private respondents have any right to the posts. It is the policy of the State Government to regulate the posts in question. When the initial appointments of the TRP's are not doubted, the petitioner cannot question their subsequent contractual appointments. The entire selection of the persons on such posts is within the domain of the state authorities and is regulated by the Rules and Regulations. There is no permanent posts created as the scheme/project itself is temporary. The posts are not statutory in nature since the Regulations and Rules under which they are governed are not statutory in nature. All the posts are filled in by contractual appointments. The Executive Committee and the State Project Director is empowered under the Rules and Regulations to implement the policy of the State in an effective and phased manner and the creation/abolition/appointment and designation of posts depends on the requirement of the project. The petitioner has not challenged the powers conferred to the Executive Council and State Project Director under the Rules and Regulations for regulating the posts and appointments. Thus, the grievance of the petitioner in seeking the declaration of such posts as non est is ill-founded and misconceived. As a sequel the appointments of the private respondents cannot be quashed and set aside. With regard to the allegations of extraneous consideration, illegality and corruption committed by some persons as named in the writ petition, this Court while exercising powers under Article 226 of the Constitution of India cannot examine such issue in absence of such individuals being joined as party respondents.

18. On the fundamentals of the foregoing reasons and analysis, the writ petition fails. RULE is discharged.

19. In view of the order passed in the main matter, the connected civil application does not survive and the same stands disposed of.