Allahabad High Court
Kundan Singh vs The State Of ... on 3 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 118, (2020) 1 ADJ 529 (ALL) (2020) 1 ALL WC 564, (2020) 1 ALL WC 564
Author: Alok Mathur
Bench: Pankaj Kumar Jaiswal, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVE JUDGMENT AFR Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 520 of 2019 Appellant :- Kundan Singh Respondent :- The State Of U.P.Throu.Prin.Secy.Medical Edu.Lko.And Ors. Counsel for Appellant :- Dr. V.K. Singh Counsel for Respondent :- C.S.C.,Abhinav N.Trivedi,Gyanendra Kumar Srivastav Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Heard Sri Amit Bose, Senior Advocate assisted by Dr. V.K. Singh, learned counsel for the appellant, Sri Manish Mishra, learned counsel for respondent no. 1, Sri Anil Kumar Tewari, Senior Advocate assisted by Sri Abhinav N. Trivedi, learned counsel for respondent nos. 2 and 4 and Sri Gyanendra Kumar Srivastava, learned counsel for respondent no. 5.
2. This special appeal has been filed with delay of seven days. The delay condonation application no. 132204 of 2019, supported by an affidavit has been filed for condonation of delay in filing the appeal. The learned counsels for the respondents have no objection to the application. The cause shown in the affidavit explaining the delay in filing the appeal is sufficient and the delay is hereby condoned.
3. This special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been filed against the judgment and order dated 16.08.2019, passed by the learned Single Judge in Writ Petition No. 19119 (S/S) of 2019 - Kundan Singh Vs. State of U.P. and Others.
4. The aforesaid writ petition was filed by the petitioner seeking writ in the nature of quo-warranto, directing the opposite party no. 3 (Dr. M.L. Bhatt) to show authority of law under which he occupied the post of Associate Professor and Professor in the King George's Medical University (hereinafter referred to as "the KGMU") thereby declaring his appointment on the post of Associate Professor and Professor to be illegal and void abinitio.
5. It was submitted by the petitioner-appellant before the writ Court that respondent no. 3 was appointed as Assistant Professor in the KGMU on 27.04.2002, Associate Professor on 02.12.2003 and Professor on 08.12.2004, contrary to the Act, Statute, Regulations prevailing in the KGMU. However, he became Vice Cancellor of the KGMU in the month of March, 2017. It was further submitted that Dr. M.L. Bhatt, respondent no. 3 was granted promotion in utter violation of the Rules and norms existing without any selection committee constituted for the said purpose, even the date of his confirmation or the conversion of the same in permanent nature is without jurisdiction.
6. The aforesaid writ petition was contested by the KGMU by filing counter affidavit, questioning the maintainability of the writ petition. Another objection which was raised by the respondents with regard to the maintainability of the writ petition was that the petitioner did not challenge the present posting of respondent no. 3 inasmuch as the respondent no. 3 is discharging the functions of Vice Chancellor of the KGMU and his tenure would expire in the month of April, 2020. It was submitted that writ of quo warranto has been sought by the petitioner against respondent no. 3, to show authority of law under which he occupied the post of Associate Professor and Professor at the KGMU, which posts are not being occupied by him presently and he is not usurper of Office and therefore, no writ of quo warranto would lie to challenge occupation of office which is not held by the incumbent at the time of filing of writ petition.
7. The respondents had also raised objection that the writ of quo warranto would lie only to challenge the occupation of "public office" and the posts of Associate Professor and Professor would not qualify to be called as "public office" and therefore, writ of quo warranto would not be issued by this Court in exercise of powers under Article 226 of the Constitution of India. It was lastly submitted on behalf of respondents with regard to bonafide of the petitioner in preferring the writ petition seeking writ of quo warranto challenging the office occupied by respondent no. 3 after a delay of more than fifteen years.
8. The learned Single Judge while dismissing the aforesaid writ petition has considered the submissions made by the parties in great detail and in paragraph 7 it has been observed as under :
"7. The obvious question cropped up in the mind of the Court as to why no challenge was made in the year 2003 when the opposite party no. 3 became Associate Professor and in the year 2004 when he became Professor. Not only the above the aforesaid position of the opposite party no. 3 has not been assailed by the petitioner till filing of this writ petition when admittedly the opposite party no. 3 is discharging the duties and liabilities of Vice Chancellor of KGMU w.e.f. 14.04.2017. The said anxiety compels the Court to go into the detail of the petitioner as to why he has filed this writ petition in the year 2019, what is his status, what are the source of information of the petitioner regarding opposite party no. 3 and what may be the purpose in filing this writ petition after more than 15 years from the time when the opposite party no. 3 was actually holding the post of Associate Professor and Professor."
9. It has further been observed by the learned Single Judge that writ in the nature of certiorari may be invoked by the aggrieved person but such relief may not be granted in the garb of writ of quo-warranto by a busybody. A writ of quo-warranto may not be substitute of writ of certiorari. It is trite law that the writ of quo-warranto may be refused where it is an outcome of malice or ill-will and it has been held by the writ Court in para 11 that writ petition has been filed by one busy body who is having no public interest except for personal gain or private profit either of himself or as a proxy of others for any extraneous motivation or for glare of publicity.
10. With regard to the objection raised by the respondents that post of Associate Professor and Professor would not qualify as "public office"; inasmuch as these posts must be created by Constitution, Legislature or authority conferred by the Legislature. Further, portion of sovereign power of Government must be delegated to such position and therefore on the touchstone aforesaid office of Associate Professor and Professor could not be said to be "public office" for which a writ of quo-warranto may be issued.
11. For the aforesaid reasons the learned Single Judge dismissed the writ petition against which present special appeal has been preferred by the petitioner.
12. Sri Amit Bose, learned Senior Advocate has submitted that he had cited various judgment before the writ Court which have not been duly considered on the aspect that posts of Associate Professor and Professor would qualify to be "public office" and for which writ of quo-warranto can be issued by the writ Court.
13. It was also submitted by Sri Amit Bose that respondent no. 3 is discharging the functions of the post of Professor, inasmuch as he is taking classes in the University and the issue raised by the petitioner by means of the present writ petition would not be a purely academic question and would necessitate a requisite consideration.
14. With regard to the Bona fide of the petitioner, it was submitted that any person can maintain petition for questioning the holder of a public office with regard to his eligibility and qualification for holding the same, and therefore the petitioner had sufficient interest in maintaining the writ petition.
15. The special appeal has been opposed by Sri Manish Mishra, learned counsel for respondent no. 1, Sri Anil Kumar Tewari, Senior Advocate assisted by Sri Abhinav N. Trivedi, learned counsel for respondent nos. 2 and 4 and Sri Gyanendra Kumar Srivastava, learned counsel for respondent no. 5 and have stated that the judgment and order of learned Single Judge is just and proper and does not require any interference.
16. Heard the counsel for the petitioners as well as the standing counsel.
17. The writ of quo warranto is a judicial remedy by which a person who holds independent substantial public office of franchise as may be duly determined, and that in case the finding is that the holder of the office has no right or title, he would be ousted from the office by the judicial order. In other words the procedure of quo warranto gives the judiciary the authority to proceed against any bid to control the exhibitor from making appointments to public office against law and to protect a citizen for being deprived of public office to which he has a right. These proceedings also tend to protect public office from the usurpers of public office, he might be allowed to continue either with the connivance of the executive or by reasons of its apathy. It is thus be seen that before a person can effectively maintain a writ of quo warranto to satisfy the court that the office in question is a public office and is held by the usurper without legal authority and that inevitably would lead to the enquiry as to whether the appointment of alleged usurper has been made in accordance with law or not. For issuance of a writ of quo warranto, the Court should be satisfied that the appointment is contrary to the statutory rules, and the person holding the post has no right to hold it.
18. In order to examine the contention of the counsel for the appellant, whether the posts of Assistant Professor and Professor are "public office', it would be beneficial to refer to the various pronouncements of the Supreme Court.
19. The Hon'ble Apex Court in Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162, has held as under :
"38. In Rajesh Awasthi v. Nand Lal Jaiswal [Rajesh Awasthi v. Nand Lal Jaiswal, (2013) 1 SCC 501 : (2013) 1 SCC (Cri) 521 : (2013) 1 SCC (L&S) 192] , the Court noted that a writ of quo warranto will lie when the appointment is made contrary to the statutory provisions as held in Mor Modern Coop. Transport Society Ltd. [Mor Modern Coop. Transport Society Ltd. v. State of Haryana, (2002) 6 SCC 269] Further, relying on the decisions in B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Assn. [B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Assn., (2006) 11 SCC 731 (2) : (2007) 1 SCC (L&S) 548 (2)] and Hari Bansh Lal v. Sahodar Prasad Mahto [Hari Bansh Lal v. Sahodar Prasad Mahto, (2010) 9 SCC 655 : (2010) 2 SCC (L&S) 771] , wherein the legal position has been restated that the jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued if the appointment is contrary to the statutory rules and the Court has to satisfy itself that the appointment is contrary to the statutory rules. In that case, the Court after analysing the factual matrix found, as of fact, that there was non-compliance with sub-section (5) of Section 85 of the Electricity Act, 2003, in the matter of appointment of the incumbent to the post of Chairperson of the Commission for which it became necessary to issue a writ of quo warranto. In the supplementing judgment by one of us Dipak Misra, J. (as his Lordship then was), the settled legal position expounded in B.R. Kapur [B.R. Kapur v. State of T.N., (2001) 7 SCC 231] , University of Mysore [University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 : (1964) 4 SCR 575] , High Court of Gujarat [High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 : 2003 SCC (L&S) 565] , Centre for PIL v. Union of India [Centre for PIL v. Union of India, (2011) 4 SCC 1 : (2011) 1 SCC (L&S) 609] has been recapitulated in paras 29 to 33 of the reported decision."
20. The Supreme Court in Bharati Reddy (supra) has observed as under :
"39. We have adverted to some of those decisions in the earlier part of this judgment. Suffice, it to observe that unless the Court is satisfied that the incumbent was not eligible at all as per the statutory provisions for being appointed or elected to the public office or that he/she has incurred disqualification to continue in the said office, which satisfaction should be founded on the indisputable facts, the High Court ought not to entertain the prayer for issuance of a writ of quo warranto.
The learned senior advocate appearing on behalf of the appellant had drawn the attention this court to the judgement passed by the Bombay High Court in the case of Dr D.K.Belsare vs Nagpur University where the division bench was examining the appointment of the respondent to the post of Professor of zoology in the writ of quo warranto. The Division Bench relying on the judgement in the case of Dr P.S.Venkataswamy vs University of Mysore affirm that in India we have a republican Constitution. Hence in India the nature of office in respect of which quo warranto would like must be taken to be an office created by the Constitution itself or by any statute and invested the power of charged with duty of acting in execution or in the enforcement of the law. The court subsequently considered the provisions of the Mysore University act and the list of statutory authorities prescribed therein and concluded that it cannot be held that the post of Professor of zoology is a public office and, therefore, a writ of quo warranto cannot be issued."
21. In the case of B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn., (2006) 11 SCC 731 (2) the Hon'ble Apex Court, in this regard observed as under :-
"76. The notification dated 31-1-2004 clearly states that the appointment is on contract basis and until further orders. While laying down the terms of appointment in its order dated 21-4-2004, the Government of Karnataka clearly stated that the "term of contractual appointment of Shri B. Srinivasa Reddy shall commence on 1-2-2004 and will be in force until further orders of the Government and this is a temporary appointment". Section 6(1) of the Act categorically states that the Managing Director shall hold office during the pleasure of the Government. The power and functions of the Board are laid down in Chapter V of the Act. A reading of the Act clearly shows that neither the Board nor its Managing Director is entrusted with any sovereign function. Black's Law Dictionary defines public office as under:
"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. Spring v. Constantino [ 168 Conn 563, 362 A 2d 871, 875] . 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 powers 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. State v. Taylor [ 260 Iowa 634, 144 NW 2d 289, 292] ."
77. Carrying out sovereign function by the Board and delegation of a portion of sovereign power of the Government to the Managing Director of the Board and some permanency and continuity in the appointment are quintessential features of public office. Every one of these ingredients are absent in the appointment of the appellant as Managing Director of the Board. This aspect of the matter was completely lost sight of by the High Court."
22. Considering the judicial pronouncements with regard to "Public Office" which would, fall under the scrutiny of the Court's while exercising the discretionary power of issue a writ of quo warranto would be the offices created by the Constitution or any statute and such offices should have a fixed tenure apart from being conferred some portion of the sovereign power of the Government.
23. On the touchstone of the aforesaid principles the post of Professor in the KGMU deserves to be examined. A perusal of the King George Medical University Act, 2002, Chapter III provides for the officers of the University which are as follows:-
"CHAPTER-III Officers of the University Officers of the University 14- The following shall be the officers of the University:-
(a) the Chancellor;
(b) the Vice-Chancellor;
[(c) the Pro-Vice-Chancellor;]12
(d) the Finance Officer;
(e) the Registrar;
(f) the Controller of examination, if any;
(g) the Deans of the Faculties;
(h) the Dean of the Students Welfare;
(i) such other officers as may be declared by the Statutes to be the Officers of the University."
24. Needless to say that the post of Professor is missing from the officers of the University. Professors of the University clearly do not exercise any Government functions nor are vested with the power or charged with the duty of acting in execution of enforcement of the law. They are merely employees under a statutory body, and therefore, cannot in any sense be described as public offices in respect of which a writ of quo warranto would lie.
25. Sri Amit Bose, learned Senior Advocate vehemently tried to persuade us by citing certain pronouncements of learned Single Judge's of other High Courts, but we do not agree with the said decisions, and even otherwise would not have any persuasive value.
26. The 2nd contention raised by the counsel for the appellant was that respondent no. 3 was also working on the post of Professor and therefore a writ of quo warranto would be maintainable, despite the fact that presently he has been appointed as Vice Chancellor and is discharging his duties as such.
27. The paragraph 24 of the impugned judgment dated 16/08/2019, deals with the contention which has been raised by the counsel for the appellant, and the learned Single Judge has recorded the following :-
"...it is an admitted fact by the petitioner himself that the opposite party number 3 is presently not occupying the post of associate professor of Professor."
28. It has been has submitted on behalf of the appellant that he has filed certain documents which indicate that the respondent no. 3 continued as a professor of the University even after his appointment as Vice Chancellor and the said finding was erroneous.
29. With regard to the aforesaid contentions we are of the view that once an admission has been made by the petitioner himself before the Writ Court, which has been duly considered, it is not open for them to challenge the said finding in the intra-Court appeal. We also perused the averments made by the appellant in the writ petition, and no such pleading was made before the learned Single Judge with regard to the continuance of the respondent no. 3 on the post of Professor as well, and therefore, while exercising the limited jurisdiction in an intra-Court appeal the admission made by the petitioner before the writ court cannot be interfered with, at his instance that the same was erroneously recorded.
30. The writ petition preferred by the petitioner-appellant, was also liable to be rejected on the grounds of bona fide of the petitioner. An identical writ was filed earlier bearing Writ Petition No. 16635 (S/S) of 2019, by one Professor Ashish Waklu which was dismissed as not pressed with liberty to file fresh petition. The said petitioner chose not to exercise the liberty granted by the Court, but the appellant herein file a writ petition which is almost verbatim of the same filed earlier. The aforesaid facts apart from the fact that the respondent no. 3 is occupying the post of Vice Chancellor, which is not under challenge, but his appointment to the post of Associate Professor and Professor are under challenge which were held by him in 2003 and 2004, raises enough suspicion in absence of any fact that the writ petition was motivated and appears to be a proxy petition for extraneous considerations.
31. No other point was argued by the Appellant.
32. Considering the entire factual matrix, the judgment of the learned Single Judge, and the arguments raised by the counsel for the appellant and the respondents, we do not find any infirmity or illegality in with the impugned judgment of the learned Single Judge.
33. For the reasons stated herein above the special appeal lacks merit and is hereby dismissed.
Order Date :- 03.01.2020
A. Verma
(Alok Mathur, J.) (Pankaj Kumar Jaiswal, J.)