The High Court dismissed a writ petition filed by a subordinate employee seeking quashing of a transfer and promotion order via certiorari and removal of the promoted official via quo warranto. The Court held the writ was not maintainable as the petitioner was not aggrieved and the post was not a Public Office.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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A.F.R.
Reserved On :30.09.2021 Delivered On :17.01.2022
Case :- WRIT - A No. - 12726 of 2021 Petitioner :- Sohan Lal Sharma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Aklank Kumar Jain Counsel for Respondent :- C.S.C.
Hon'ble Neeraj Tiwari,J.
Heard Mr. Raghvendra Yadav, Advocate holding brief of Mr. Aklank Kumar Jain, learned counsel for the petitioner and Dr. D.K. Tiwari, learned Additional Chief Standing Counsel for the Staterespondents.
Present petition has been filed with the following prayers:
"(i) Issue a suitable order or direction in the nature of certiorari quashing the impugned order dated 29.9.2020 passed by the Government of U.P., Chikitsa Anubhag-2, Lucknow with regard to the respondent no.4 whose name is placed at serial No.5 of the aforesaid impugned order.
(ii) Issue a suitable order or direction in the nature of quo warranto commanding the respondents to oust the respondent no.4 from the post of Chief Medical Superintendent, District Hospital, Etah."
Learned counsel for the petitioner submitted that petitioner is Netra Parikshan Adhikari posted at District Hospital, Etah from 8.2.2020 and presently working under the respondent no.4, against whom writ of quo warranto is sought. He next submitted that respondent no.4 was working as Senior Consultant at District Hospital, Etah and he was promoted as Chief Medical Superintendent in the same hospital vide impugned order dated 29.9.2020. He further submitted that earlier Chief Medical Officer, Kanpur Nagar passed an order dated 7.7.2015 by which respondent no.4 was transferred and relieved from District Hospital Kanpur Nagar to District Hospital Etah, but he has not submitted his joining and ultimately he was unauthorizedly absent for
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more than three years from the service. Further, instead of submitting his joining, he has challenged the said order by filing Case No.CP1540 of 2018 (Dr. Rajesh Kumar Agrawal Vs. Family Welfare) before the State Services Tribunal, Lucknow, which is still pending. Ignoring his unauthorized absence, in compliance of order dated 29.9.2020, respondent no.4 was permitted to join his service as Chief Medical Superintendent, District Hospital, Etah. He further submitted that once the respondent no.4 was unauthorizedly absent from the service for more than 3 years, he cannot be permitted to join his service on the post of Chief Medical Superintendent, District Hospital, Etah. He also submitted that post of Chief Medical Superintendent is Public Office and respondent no.4 cannot hold the said post illegally as he was absent from service for more than three years and also filed a Case No.CP1540 of 2018 (Dr. Rajesh Kumar Agrawal Vs. Family Welfare) before the State Services Tribunal, Lucknow. Lastly, he submitted that under such facts and circumstances of the case, order is bad in law, writ of certiorari as well as quo warranto may be issued for cancelling the promotional order of respondent no.4 dated 29.9.2020 and removed him from the post of Chief Medical Superintendent, District Hospital Etah.
Dr. D.K. Tiwari, learned Additional Chief Standing Counsel has opposed the submission of learned counsel for the petitioner and submitted that present petition for writ of certiorari as well as quo warranto is not maintainable for many reasons. He next submitted that first of all impugned order dated 29.9.2020 is not a promotional order, but it is a transfer order only. He further submitted that in service matter, writ petition can only be filed by the person aggrieved, whereas in the present case, petitioner is not the person aggrieved. He is admittedly subordinate to respondent no. 4 in the same hospital and even in case of quashing of impugned order dated 29.9.2020, petitioner would not be
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entitled to hold the post of Chief Medical Superintendent at District Hospital, Etah, therefore, writ petition for writ of certiorari is not maintainable.
In support of his contention, he has placed reliance upon the judgments of the Apex Court as well as this Court in the cases of R.K. Jain Vs. Union of India and others reported in 1993 (4) SCC 119, Dr. Prabhu Nath Prasad Gupta vs. State of U.P. And others reported in 2003 (52) ALR 520 and Sanker Verma vs. State of U.P. Thru. Prin. Secy. Edu. Lucknow and others passed in Service Single No. 14329 of 2019 decided on 23.5.2019 .
Learned Standing Counsel further submitted that writ of quo warranto may also not be issued in the present case. For issuance of writ of quo warranto, it has to be seen by the Court as to whether incumbent is holding the Public Office or not and further he is having essential qualification to hold the said post or not. So far as present case is concerned, on both the grounds, writ of quo warranto may not be issued.
He next submitted that post of Chief Medical Superintendent, District Hospital, Etah is not Public Office. The very same matter came before this Court in the case of Ravi Kant Tiwari vs. State of U.P. Thru. Sanjay Gandhi Pg. Institute and others passed in Service Single No. 36210 of 2019 and this Court after considering so many judgments, held that post of Chief Medical Superintendent is not a Public Office.
So far as qualification is concerned, there is no dispute on the point that respondent no.4 is fully qualified to hold the said post, therefore, mere his absence for more than three years from service, filing of a case and ultimately permitted by the employer of State Government to join his service cannot be a ground for issuance of writ of quo warranto.
I have considered the rival submissions advanced by the learned
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counsel for the parties and perused the record as well as judgment relied by the leaned Standing Counsel for the State-respondents. There is no dispute on the issue that in service matter, writ petition can only be filed by the person aggrieved. Undisputedly, petitioner is not aggrieved by the order of Government of U.P. Chikitsa Anubhag-2 Lucknow dated 29.9.2020 by which respondent no.4 was transferred and posted as Chief Medical Superintendent, District Hospital Etah as he is not prospective incumbent for the same post.
In the matter of R.K. Jain (Supra), Court has held that in service jurisprudence, only aggrieved person can assail the illegality of offending action. Paragraph 74 of the said judgment is quoted hereinbelow:-
“74. Shri Harish Chander, admittedly was the Senior Vice-President at the relevant time. The contention of Shri Thakur of the need to evaluate the comparative merits of Mr. Harish Chander and Mr. Kalyansundaram a seniormost member for appointment as President would not be gone into a public interest litigation. Only in a proceedings initiated by an aggrieved person it may be open to be considered. This writ petition is also not a writ of quo warranto. In service jurisprudence, it is settled law that it is for the the aggrieved person i.e. nonappointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public spirited person.”
Again in the matter of Dr. Prabhu Nath Prasad Gupta (Supra), this Court after considering so many judgments, has taken similar view that only person aggrieved can only be filed writ petition.
The similar issue was again came before this Court in the matters of Sanker Verma (Supra), Court after considering judgments of Apex Court, has held that in service matter, only person aggrieved can file writ petition. Paragraph 8 of the said judgment is quoted hereinbelow:-
“ 8. From a perusal of the law laid down by the Apex Court in the case of Ravi Yashwant Bhoir (supra) as well as the Division Bench judgment in the case of Dharam Raj (supra) it clearly comes out that for a person to prefer the petition, he has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. Thus in order to prefer a writ, the person entitled would be one who has either been wrongly deprived of his entitlement which he is legally entitled to receive and it does not include any kind of
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disappointment or personal inconvenience. It is settled proposition of law that the person who suffers from legal injury only can challenge the act or action or order by filing a writ petition inasmuch as the writ petition under Article 226 of Constitution of India is maintainable for enforcing a statutory or legal right or when there is a complaint by the petitioner that there is breach of statutory duty on the part of authorities. Thus, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to and not for the purpose of settlement of a personal grievance.”
In the present case too, there is no doubt on the point that petitioner is not aggrieved by the impugned order dated 29.9.2020, which is necessary requirement in service matter for filing a writ petition, therefore, in light of facts as well as judicial pronouncement made by Courts, this petition is not maintainable and no writ of certiorari can be issued for quashing the impugned order dated 29.9.2020.
Coming to the second point as to whether writ of quo warranto against the respondent no.4 can be issued or not. The very same issue came before this Court in the case of Ravi Kant Tiwari (supra) and Court after considering so many judgments, has held that post of Chief Medical Superintendent is not a Public Office. Paragraph 16 of the said judgment is quoted hereinbelow:-
“16. From the aforesaid discussion, it is evident that the post of Chief Medical Superintendent of SGPGIMS cannot be held to be a 'Public Office' merely because the SGPGIMS is in the field of medical service. The office of Chief Medical Superintendent does not seem to involve an obligation of any of the sovereign functions of the Government either Executive or Legislative or Judicial for public benefit. It cannot be said that the public in general is interested and non-observance of the obligations of employment of respondent no.3 as a Chief Medical Superintendent, in any event, shall effect the interest of public at large; and even if it would affect, the same shall be too remote so as to make the office of the Chief Medical Superintendent a 'Public Office'.”
In light of judgment of this Court in the matter of Ravi Kant Tiwari (Supra) as well as facts of the case, once the post of Chief Medical Superintendent is not Public Office, no writ of quo warranto can be issued.
Now coming to the second point as to whether respondent no.4 is having eligibility to hold the said post or not, which is a core issue for
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issuance of writ of quo warranto. Undisputedly, respondent no.4 is qualified Doctor, duly appointed by the respondents in the State Medical Services having all qualification for holding the post of Chief Medical Superintendent. Therefore, mere absence from service for certain time, cannot be a ground for issuance of writ quo warranto. The State Government is the employer of respondent no.4 and employer has always right to condone/waive off the certain deficiencies, if found. In the present case, assuming it respondent no.4 has not joined his service for certain time, it can only be an irregularity and not illegality for which State Government has full right to condone the same. It is also undisputed that respondent no.4 was earlier posted as Senior Consultant District Hospital, Etah and he was very well in service. Therefore, his transfer/adjustment from one post to another post in same hospital cannot said to be illegality and mere his absence from the service for certain period would not attach any ineligibility or disqualification to respondent no.4 to hold the post resulting into issuance of writ of quo warranto.
Therefore, under such facts of the case and law laid down by Courts, I found no substance, writ petition lacks merit and is accordingly, dismissed . No order as to costs.
Order Date :- 17.1.2022 Junaid
2 issues framed by the court
Whether a subordinate employee has locus standi to file a writ of certiorari or quo warranto against a government transfer and promotion order of a superior.
Whether the post of Chief Medical Superintendent is a 'Public Office' attracting the jurisdiction of a writ of quo warranto.
Colour shows how this judgement treated each authority
R.K. Jain vs. Union of India and othersRelied on¶23
1993 (4) SCC 119 · Who else cites this
Dr. Prabhu Nath Prasad Gupta vs. State of U.P. And othersRelied on¶25
2003 (52) ALR 520
Sanker Verma vs. State of U.P. Thru. Prin. Secy. Edu. Lucknow and othersRelied on¶16
Service Single No. 14329 of 2019
Ravi Kant Tiwari vs. State of U.P. Thru. Sanjay Gandhi Pg. Institute and othersRelied on¶31
Service Single No. 36210 of 2019
Sohan Lal Sharma
State Of U.P.
Respondent No.2
Respondent No.3
Respondent No.4
Neeraj Tiwari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
