Allahabad High Court
Dr. Neetu Singh vs State Of U.P. Thru Secretary Medical ... on 5 September, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- MISC. BENCH No. - 24229 of 2019 Petitioner :- Dr. Neetu Singh Respondent :- State Of U.P. Thru Secretary Medical Health & Ors. Counsel for Petitioner :- Shailendra Misra Counsel for Respondent :- C.S.C.,Abhinav N. Trivedi Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Hon'ble Saurabh Lavania,J. ) Heard Sri Shailendra Misra, learned counsel for the petitioner, learned C.S.C. for the opposite party No. 1 and Sri Abhinav N. Trivedi, learned counsel for the opposite party Nos. 2 and 3.
1. By means of the instant Writ Petition the Petitioner who is working as Professor in the Department of Centre for Advanced Research (Molecular Biology) of King George's Medical University (hereinafter referred to as ''KGMU') has sought a Writ of Quo-warranto against Respondent No.4 Dr Shailendra Saxena working as Professor in the Department of Centre for Advanced Research (Stem Cell/Cell Culture Lab) requiring him to show cause as to under which Authority of Law he is holding the post of Professor.
In the present writ petition, following main relief has been sought:-
"(i) Issue a writ, order of direction in the nature of quo warranto requiring the opposite parties to show that by which authority opposite party No. 4 is holding the post of Professor Centre for Advance Research (Stem Cell/Cell Culture Lab) K.G.M.U., Lucknow."
2. The Writ Petition has been filed on the ground that the Respondent No.4 lacks the educational qualification as required by an incumbent for being appointed as Professor in Stem Cell/Cell Culture Lab and therefore, was in-eligible. In support of the aforesaid allegations, the Petitioner has contended that the Respondent No.4 does not possess qualifications as prescribed in the Advertisement against the post of Professor in Stem Cell/Cell Culture Lab.
3. Learned counsel representing the K.G.M.U, Sri Abhinav N. Trivedi, raised A Preliminary objection raised with regard to maintainability of the instant Writ Petition seeking a Writ of Co-Warranto on the ground that the post of ''Professor' in KGMU is not a ''Public Office'.
In support of preliminary objection, Sri Trivedi counel for the K.G.M.U, placed reliance on the provision of Uttar Pradesh King George's Medical University Act, 2002 (in short "Act of 2002") and First Statute, 2011 (in short "Statute of 2011"). The reliance has also been placed on various authorities/judgments including the judgment of this Court dated 16.08.2019 passed in the Writ Petition No.19119 (SS) of 2019 [Kundan Singh Vs. State of U.P.].
4. It is submitted by Sri Trivedi that the The High Court in exercise of its Writ Jurisdiction, in the matter of Quo-Warranto, is required to determine at the outset as to whether a case has been made out for issuing a Writ of Quo-warranto. The jurisdiction of the High Court to issue a Writ of Quo-warranto is a limited one. A Writ of Quo-warranto can only be issued when three conditions are satisfied i.e. (1) the appointment is contrary to the Statutory Rules; (2) the holder of the post is a Usurper ; and (3) the post in question is a ''Public Office'.
5. Sri Trivedi further submitted that the law is well settled. The High Court in exercise of its writ jurisdiction in the matter of Quo-warranto is required to determine, at the outset, as to whether a case has been made out for issuance of a Writ of Quo-warrnto. The jurisdiction of the High Court to issue a Writ of Quo-warranto is a limited one which can only be issued when it is established that the incumbent is an alleged Usurper of a ''Public Office' and the appointment is contrary to the Statutory Rules.
Per contra, the learned counsel for the petitioner submitted that K.G.M.U. is a Statutory Body constituted under the special Act and being so as well as in view of functions which K.G.M.U. is discharging i.e. providing medical education and treatment to the public at large, it, can safely be said that K.G.M.U. is discharging sovereign function and post of the Professor is "Public Office." Thus writ petition for the relief sought is liable to be entertained, being maintainable and be decided on merits.
6. Before dealing with case on merits on the basis of the factual matrix and dealing with the exposition of facts, as illustrated in the Writ Petition, it would be expedient to adjudicate the issue of maintainability of Writ Petition seeking a Writ of Quo-Warranto.
7. It would be necessary to refer to certain provisions of ''Uttar Pradesh King George's Medical University Act, 2002 and ''Uttar Pradesh King George's Medical University First Statute 2011'.
7.1 Section 23 of the Uttar Pradesh King George's Medical University Act 2002 [Act of 2002] provides for Authorities of KGMU and Section 14 of Act of 2002 illustrates the Officers of KGMU. Whereas a teacher of KGMU is merely an employee of KGMU and is neither an Authority or an Officer as prescribed under Section 12 and 23 of Act of 2002, which is also apparent from a conjoint reading of Section 2 (12) of the Act of 2002 and Statute 10.01 (7) & (10) of Uttar Pradesh King George's Medical University First Statute 2011 [Statute of 2011]. For ready reference, the aforesaid provisions of the Act of 2002 and the Statute of 2011 are being reproduced here as under :
ACT OF 2002 Definitions 2. In this Act-
(12)'teacher' means a teacher employed by the University for imparting instruction and guiding and conducting research in the University;
CHAPTER III- OFFICERS OF THE UNIVERSITY Section 14. The following shall be the Officers of the University
a) The Chancellor;
b) The Vice-Chancellor;
c) The Pro-Vice-Chancellor;
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.
CHAPTER IV- AUTHORITIES OF THE UNIVERSITY
23. The following shall be the authorities of the University:
a) the Executive Council;
b) the Court;
c) the Academic Council;
d) the Finance Committee
e) the Boards of Faculties;
f) the Selection Committee for appointment of Teachers of the University;
g) the Admissions Committee;
h) the Examination Committee; and
i) such other authorities as may be declared by the Statutes to be authorities of the University.
FIRST STATUTES, 2011 Chapter X - University Teachers / Faculty Members Section 41 10.01 (1) As per provisions contained in Subsection (12) of Section 2 of the Chhatrapati Shahuji Maharaj Medical University Act, "teacher" means a teacher employed by the University for imparting instruction or guiding or conducting research in the University.
(2) The University teachers shall also be known as Faculty Members of the University.
(7) A teacher shall be a full time consultation for the indoor patients and likewise for the outdoor patients along-with their responsibilities as teachers.
(10) The appointment of the University teacher/s shall be on a whole time basis. He shall be a full time employee of the University.
8. While referring to the aforesaid Statutory Provisions of the Act of 2002 and Statute of 2011, it has been contended that the post of Professor in KGMU is not a ''Public Office'. It has further been submitted that in order to maintain a Writ of Quo-warranto, the Petitioner has to substantiate that the Office is a ''Public Office' and the person against whom the Writ of Quo-warranto is sought is a usurper holding the Public Office without any legal authority. In support of this argument, reliance has been placed on various judgments of Hon'ble Supreme Court and different High Courts which are being discussed here under:
8.1 In case of Dr P.S.Venkata Swamy Setty Vs University of Mysore- (AIR 1964 Mysore 159; Para 11,13,14) it has been held that the Professors and Readers of a University do not exercise any governmental function nor they are vested with the power or charged with the duty of acting in execution or enforcement of law. They are merely employees of the Statutory Body. They cannot therefore in any sense be described as holders of Public Offices in respect of which a Writ of Quo-warranto would lie.
8.2 In Dr P.S.Venkata Swamy Setty (Supra), the University of Mysore though its Registrar, vide Notification dated 25th June,1959 invited Applications for various posts ofProfessors and Readers in different subjects. The Petitioner therein was one of the Applicants for the post of Reader in Physics. Several candidates were interviewed but none was selected and therefore, One Post of Professor and Three Posts of Reader in Physics were re-advertised and consequently the Private Respondents were selected. The Petitioner filed Writ Petition praying for a Writ of Mandamus or Writ of Quo-Warranto against the Private Respondents primarily on the ground that the appointments are invalid or unauthorized because qualifications set out in Second Notification were not shown to have been prescribed by Syndicate of the University and some of the Respondents did not possess the minimum qualifications.
Specific objection was raised with regard to maintainability of a Writ of Quo-warranto and after considering various judicial pronouncements, the Mysore High Court has held as under in Paragraph 11, 13 & 14:
"PARA 11 The peculiar characteristics of the writ of quo-warranto and the history of its development in England are found discussed in the leading case of The King V.Speyer,(1916))1 KB 595.Lord Reading , C.L, points out that originally a writ of quo warranto was available only for use by the King against encroachment of royal prerogative or of rights, franchise or liberties of the Crown but that later it gave place to the practice of filing information by the Attorney General on the strength of which the Court enquired into the authority whereby the respondent held any public position. Later still, the King's coroner commenced the practice of exhibiting the information of quo warranto at the instance of even private persons. To prevent the abuse of this practice, statutes were subsequently passed during the reign of the King William and Queen Mary, after which the practice of coroner filing information was stopped. Another statute was passed during the reign of Queen Anne making the issue of a writ of quo warranto subject to the discretion of the Court to grant or refuse the same upon the information exhibited by private persons. In a sense, the proceedings were criminal in nature because the party who laid information before the Court was merely in the position of an informer or a relator. The long history of the proceedings in quo qarranto led to considerable conflict of decisions. The matter was fully examined by the House of Lords in the case of Darley v.R.,(1846) 12 Cl. And F. 520 at p.537: 8 ER 1513, in which Tindal , C.J expressed his conclusion in the following of quoted words :-
"After consideration of all the cases and dicta on this subject, the result appears to be that this proceeding by information in nature of quo warranto will lie for usurping any office, whether created by charter alone , or by the Crown, with the consent of Parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others".
PARA 13 In India we have a republican Constitution. Hence in India the nature of Office in respect of which quo warranto will lie must be taken to be an office created by the Constitution itself or by any statute and invested with the power or charged with the duty of acting in execution or in enforcement of the law. We might add that the office may be either an elective office or one in respect of which a nomination or appointment is made by a specified authority and that in the case of elective office, we generally have the procedure of election petitions which makes it unnecessary for any one to proceed by way of a writ of quo warranto.
Provided the office is of the character or nature described above, it is well established in England that the Petitioner who is only a relator need not have any personal interest in the matter. All that is necessary is that he should act bona-fide in public interest and should not be a mere man of straw acting at the instance of others or on ulterior motives. The writ, as already stated, is purely discretionary with the Court and will not issue unless the Court is satisfied that it is necessary to issue the writ in public interest.
PARA 14 The principles stated in the case of 1916, 1 KB 595 have been applied in India also. The only case where it was held that even in the case of quo warranto the petitioner must have a personal interest before he could move the Court is the decision of a single Judge Chandra Reddi,J. as he then was, of the Madras High Court reported in re ,Chakkaral Chettiar , AIR 1953 Mad 96. His Lordship purported to follow the decision of a Bench of that High Court reported at Page 94 of the same Volume. That Bench decision, however, related to a case of certiorari.The opinion of Chandra Reddi ,J.,was dissented from by a subsequent Bench ruling of the Madras High Court in Sivarama Krishnan v.Arumugha Mudliar, (S) AIR 1957 Mad 17. It is pointed out in that case that no other High Court in India has accepted Justice Chandra Reddi's view, Among the rulings of other High Courts expressing such dissent are Biman Chandra V. Governor, West Bengal, AIR 1952 Cal 799 and V.D.Deshpande v. State of Hyderabad(S) AIR 1955 Hyderabad 36. In the latter decision other cases, both English and Indian, and found discussed and the principles formulated."
8.3 Similar observation have been made in the case of Dr D.K. Belsare Vs Nagpur University; (1980) 82 Bom LR 494, Para 60,61,64,66.
8.4 In Dr D.K. Belsare (supra) the Petitioner before the Bombay High Court filed a Writ of Quo-warranto against the incumbent appointed as Professor of Zoology. The Writ Petition was filed on the ground that: (a) the appointment is Malicious; (b) Selection Committee has not been constituted in terms of the provisions; and (c) Appointment of Respondent No.3 was illegal. After considering the provisions of the Act and the Statutes of the University and legal prepositions, the Bombay High Court held as under :
"PARA 60 We have presently pointed out earlier that in this case this submission about collateral attack is not at all maintainable. The next ruling is Alex Beets v. M.A Urmese. In this ruling, a writ for quo warranto was asked for by a medical graduate against an Hon.Medical Officer with certain other reliefs. It was contended that the Government has bound to observe the provisions of Art, 16 of the Constitution of India and to advertise invitations for applications thereof , which was not done in that case. It was held that in the absence of such a case in the Petition, this could not be urged at the final hearing. Consequently, it was held that a challenge under Art.16 cannot be urged by one who was not an aspirant to the post. It was further held that challenge under art.16 cannot be heard in a motion cannot be heard in a motion for quo warranto and breach of art.16 can be challenged in a writ of certiorari only and it was further held by the Kerala High Court that possession of a Public Office under a Government Order is not usurpation of Office, for which alone quo-warranto lies.
PARA 61 Then the next ruling is the University of Mysore v S.C.Govinda Rao, but there is nothing particular in this ruling and it only lays down the procedure and the next ruling is Dr P.S.Venkataswamy v.University of Mysore. In Para 11 of this ruling, the Mysore High Court observed as follows:
"In India we have a republican Constitution. Hence in India the nature of Office in respect of which quo warranto will lie must be taken to be an office created by the Constitution itself or by any statute and invested with the power or charged with the duty of acting in execution or in enforcement of the law."
PARA 64 We have already referred to the ruling of Rajasthan High Court. The Rajasthan High Court has held that it is a statutory post. We are respectfully not in agreement with the said reasoning of the Rajasthan High Court . It is admitted fact that Professor is appointed by the Executive Council upon recommendation made by the Selection Committee in that behalf. It is true that Professor is appointed under the powers vested in the Executive Council but that by itself does not go to show that the post of Professor is a statutory post created by Statute itself. We are in respectful agreement with the observations made by the Mysore High Court and we, therefore, hold that the post of Professor in Zoology, with which we are concerned in this case, is not a public office for which a writ of quo -warranto is issued.
PARA 66 We have already pointed out that it is not the contention of Mr.Oka that he is challenging the constitution of the Selection Committee but we have also pointed out that he is relying upon the statutory provisions to show that the Selection Committee was not properly constituted as per s.45 of the University Act. If the Petitioner were to challenge the very constitution of the Selection Committee itself, then the ruling on which Mr.Deshpande placed reliance, regarding collateral attach would have been applicable to the facts of the instant case but in as much as no such contention is raised by the Petitioner, there is no force in this contention raised by Mr.Deshpande. The only contention of the petitioner is that the post is not filled in accordance with the section, which was required to be made in accordance with law. In result, therefore, it will be seen 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. The result is that there is no merit in this petition and it deserves to be dismissed and is accordingly dismissed. Rule is discharged, but in the circumstances of this case, there will be no Order as to costs."
8.5 In the case of University of Mysore Vs Govinda Rao AIR 1965 SC 491; Para 6, the Hon'ble Apex Court has held that 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 enquiry 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.
8.6 In Govinda Rao (Supra) the Mysore High Court allowed the Writ Petition and consequently issued a Writ of Quo-warranto against the Research Reader in English in Central College, Bangalore, being aggrieved thereof Special Leave Petitions were filed which were converted into Civil Appeal No.417 and 418 of 1963. Allowing the Civil Appeals, the Hon'ble Supreme Court held as under:
PARA 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.
As Halsbury has observed:
"An information in the nature of a quo warranto took the place of the absolate 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 enquiry leads to the finding that the holder of the Office has no valid title to it, the issue of 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 recognized 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."
8.7 In the case of B. Srinivasa Reddy VS Karnataka Urban Water Supply and Drainage Board Employees Association reported in (2006) 11 SCC 731 II Para 76; the judgment of Learned Single Judge directing for the ouster of Managing Director, Karnataka Urban Water Supply was affirmed by the Division Bench of High Court of Karnataka in Writ Appeal No.86 of 2006. The matter went up to the Hon'ble Supreme Court and after considering the definition of ''Public Office' as defined in Black's Law Dictionary, the Hon'ble Apex Court has held that certain essential elements are to be established in order to hold an Office / Post as ''Public Office'.
8.8 The aforesaid essential elements can be summarized as under:-
a) Position must be created by constitution, legislature or authority conferred by legislature.
b) Portion of sovereign power of government must be delegated to such position.
c) Duties and powers must be defined directly or impliedly.
d) Duties must be performed independently without control or superior power other than law.
e) Position must have some permanency and continuity.
8.9 The Hon'ble Apex Court in Srinivasa Reddy (Supra) observed that the Appeals involve substantial questions of law regarding interpretation of certain provisions of Karnataka Urban Water Supply and Drainage Board Act, 1973 and the Rules made there under and also the principles of law governing the writ of quo warranto.
Consequently the Hon'ble Apex Court has held as under:
"PARA 76 "The Notification dated 31.01.2004 clearly stated that the appointment is on contract basis and until further orders. While laying down the terms of appointment in its order dated 21.04.2004, the Government of Karnataka clearly stated that the "term of contractual appointment of Shri B.Srinivasa Reddy shall commence on 01.02.2004 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' and (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. 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 power other than law and position must have some permanency and continuity .State v.Taylor."
9. It is now a trite law that in order to maintain a Writ of Quo-Warranto it has to be established that the post held by the alleged usurper is a ''Public Office'.
10. In our opinion, one of the most important conditions which the person seeking a writ of quo-warranto must satisfy is that the Office in question is a ''Public Office' and the same is of a public nature. If this condition is satisfied, only in such a case the Court may proceed further to inquire as to whether the appointment to the ''Public Office' is really in violation of statutory rules and regulations or any provision of law.
11. Pre-requisite for maintaining a Writ of Quo-warranto is to establish and satisfy before the Court that the Office in question is a ''Public Office' and it is held by a person without legal authority.
12. Accordingly, it is obvious to deal the fundamental question that whether the post of Professor is a Public Office and does it qualifies the essential characteristics of ''Public Office' as illustrated herein above.
13. In the present case there is no assertion in the entire Writ Petition that the post of Professor in the Department of Centre for Advanced Research (Stem Cell/Cell Culture Lab) in KGMU is a ''Public Office'.
14. There is a distinction between Public Office, Public Authority and Public Duty. A Professor of a University can be said to be discharging a Public Duty but that ipso-facto would not make the post of Professor as a ''Public Office' for the purpose of maintaining a Writ of Quo-Warranto.
14.1 In regard to ''Public Office', the Calcutta High Court in the case of Shashi Bhushan Ray Vs Pramatha Nath Bandopadhyay reported in (1966) SCC Online Cal 153;Paragraph 45 has relied upon Ferris Extra-ordinary Legal Remedies (Page 168), and consequently observed that the Law is stated to be that a Public Office is the right, authority and duty created and conferred by law by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the Public, for the term and by the tenure prescribed by Law. In other words, it entails an obligation of the sovereign power.
14.2 ''Public Office' as explained by the Major Law Lexicon IV Edition 2010 is as under:
''Public Office' defined .55-6 V.c.40 S.4 A position whose occupant has legal authority to exercise a government's sovereign powers for a fixed period.
14.3 A ''Public Office' is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties. The determining factor, the test, is whether the Office involves a delegation of some of the solemn functions of government, either executive, legislative or judicial, to be exercised by the holder for the public benefit.(72 CWN 64,Vol.72) [Extraordinary Legal Remedies, by Ferris as referred in V.C.Shukla v.State(Delhi Admn),(1980) Supp 249,266 Para 26] In Re Miram's(1891)IQB 594 Cave.J, said "to make the Office a Public Office the pay must come out of national and not out of local funds the Office must be public in the strict sense of that term. It is not enough that the due discharge of the duties should be for the public benefit in a secondary and remote sense".
14.4 According to the Black's Law Dictionary 6th Edition, the term ''Public Office' is explained 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...2nd 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 of superior power other than law, and position must have some permanency and continuity. State ex rel.Eli.Lily and Co. v Gaertner, Mo.App,619 S.W, 2D , 761, 764."
15. What can be deduced from the term ''Public Office' as explained by various authorities and the authoritative pronouncements is that a ''Public Office' is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of portion of sovereign power. It is a trust conferred by public authority for a public purpose, embracing the idea of tenure, duration, emoluments and duties. A public officer is, thus to be distinguished from a mere employment or agency resting on contract, to which such powers and functions are not attached. The Common Law Rule is that in order for the writ of quo warranto to lie, the office must be of a public nature. The determining fact, the test, is whether the office involves a delegation of some of the solemn functions of Government either executive, legislative or judicial, to be exercised by the holder of such office for general public benefit at large. Unless his powers are of this nature, he is not a public officer.
16. Hon'ble Supreme Court in the case of ''Agriculture Produce Market Committee VS Ashok Hariauni and another' reported in (2000) 8 SCC 61. In Paragraph 21 has held as under:
Para 21:
"In other words, it all depends on the nature of power and the manner of its exercise. What is approved to be ''Sovereign' is defence of the Country, raising armed forces, making peace or war, foreign affairs, power to acquire and retain territory. These are not amenable to the jurisdiction of ordinary Civil Courts. The other function of the State including welfare activity of State could not be construed as ''Sovereign' exercise of power. Hence every governmental function need not be ''Sovereign'. State activities are multifarious, from the primal ''Sovereign' power which exclusively inalienably could be exercised by the sovereign alone, which is not subject to challenge in any civil court to all the welfarte activities, which would be undertaken by any private person. So merely if one is an employee of statutory bodies would not take it outside the Central Act. If that be so then Section 2(a) of the Central Act read with Schedule I gives large number of statutory bodies which should have been excluded, which is not. Even if a statute confers on any statutory body, any function which could be construed to be ''Sovereign' in nature would not mean every other functions under the same statute to be also sovereign. The court should examine the statute to sever one from the other by comprehensively examining various provisions of the Statute . In interpreting any statute to find if it is ''industry' or not we have to find its pith and substance. The Central Act is enacted to maintain harmony between employer and employee which brings peace and amity in its functioning. This peace and amenity should be objective in the functioning of all enterprises. This is to the benefit of both the employer and employee. Misuse of rights and obligations by either or stretching it beyond permissible limits have to be dealt with within the framework of the law but endeavour should not be in all circumstances to exclude any enterprise from its ambit. That is why courts have been defining ''industry' in the widest permissible limits and ''sovereign' functioning within its limited orbit."
16.1 From the perusal of the judgment of Hon'ble Apex Court in Agriculture Produce Market Committee (supra) it is culled out that for a particular function to be a ''sovereign function' would depends on the nature of the power and the manner in which it is exercised All Welfare Activities of the State could not be construed as ''Sovereign' exercise of power. Hence, every governmental function need not be ''Sovereign'. The mere fact that one is an employee of a statutory body would not ipso facto mean that the function exercised by such employee is ''Sovereign' in nature.
16.2 Soverign has been defined in Black's Law Dictionary as under:-
Sovereign: adj.
(Of a state) characteristic of or endowed with supreme authority< sovereign nation> < sovereign immunity>.
Sovereign: n
1. A person, body or State vested with independent and supreme authority. 2.The ruler of an independent state-
Sovereign people The political body consisting of the collective number of citizens and qualified electors who possess the powers of sovereignty and exercise them through their chosen representatives.
Sovereign power The power to make and enforce laws.
17. From the aforesaid discussions it is evident that the post of Professor of KGMU cannot be held to be a ''Public Office' merely because the University is imparting education and is a Statutory Body enacted under the Act of 2002. Office of Professor 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 Public in general is interested and non observance of the obligations of his employment as a Professor, 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 Professor a ''Public Office'.
18. After considering the aforesaid preposition the Calcutta High Court in the case of Shashi Bhushan Ray Vs Pramatha Nath Bandopadhyay (supra) has held that the Principal of the University Law College is not a Public Office and his duties and functions are neither executive nor legislative nor judicial function.
PARA 45 "Even if doubts as to the petitioner's locus standi were overlooked the other important question in this case is whether the Court will at all intervene in the matter be reason of the fact that Dr.Bandopadhyay has resigned Counsel for the Respondents relied on the statement of law in Ferris Extraordinary Legal Remedies on two questions, first as to whether the office of Principal is a public office in regard to which the Court will intervene and secondly, whether the right has abated by reason of the resignation of Dr.Bandopadhyay. In regard to public office at page 168 in Ferris the law is stated to be that public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by Law. In other words, it implies a delegation of a portion of the sovereign power. It is a trust conferred by public authority for a public purpose embracing the ideas of tenure, duration, emoluments and duties. Relying on this statement of law Counsel for the Respondents rightly contended that the Office of the Principal of the University Law College is not a public office and it was neither an executive nor a legislative nor a judicial function."
19. Taking note of various judicial pronouncements, in a recent judgment, this Court in the case of Kundan Singh Vs State of U.P and Others [Writ Petition No. 19119 (S/S) of 2019] the Learned Single judge has held that the post of Professor in KGMU is not a Public Office and consequently the Writ Petition seeking a Writ of Quo-warranto against the Professor was dismissed.
20. After considering the relevant provisions of the Act of 2002 and Statute of 2011 and various authorities, referred hereinabove, it is apparent that a Teacher/Faculty Member is a full time employee of the University. He is neither an Authority nor an Officer of the University.
21. In view of the aforesaid, we are of the view that the teaching staff / faculty (Professor in the instant case) of King George's Medical University are not the holder of Public Office.
22. For the aforesaid reasons the instant Writ Petition is dismissed at admission stage, being not maintainable for the reliefs sought. No order as to costs.
Order date:-05.09.2019 Arun/-