# Dr. Neetu Singh v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-04-07
- **Case number:** Misc. Bench No. 24229 of 2019
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-neetu-singh-v-state-of-u-p-ors-44581
- **Pages:** 14

## Headnote

Act, 2002 - Sections 14 and 23 - First
Schedule - Chapter X- Petitioner is a
Professor (Molecular Biology) at KGMU has
sought a Writ of Quo-warranto against
Respondent No.4 -working as Professor (Stem
Cell/Cell Culture Lab) requiring him to show
cause as to under which Authority of Law he is
holding
the
post
of
Professor-post
of
professor-not a public office-it is merely
employee-writ not maintainable.

Held: - a Teacher/Faculty Member is a fulltime employee of the University- He is neither
an Authority nor an Officer of the University.
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. -
Writ not maintainable.

Writ Petition dismissed (E-8)
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases Cited: -

## Text

_Characters 0–39,587 of 44,458. This is a partial read: ask again with offset=39587 for what follows._

2 All. Dr. Neetu Singh Vs State of U.P. & Ors.
1249

(v) judgment was rendered in
ignorance of the fact that a necessary
party had died and the estate was not
represented, or

(vi) a party has had no notice
and a decree was made against him or

(vii) there is inherent lack of
jurisdiction and such lack of jurisdiction
is patent

(h)
The
alleged
substituted
service was shown with respect to the
tenant-defendant 1st set and the tenantdefendant 2nd set by single publication in
one and the same news paper i.e. "Jagat
Asha" and the court below itself held in
its order dated 08.04.2019 in Misc. Case
No.46 of 2018 filed by the tenantdefendant 1st set for setting asdie the
judgment and decree dated 07.04.2018,
that the substituted service by publication
in the news paper "Jagat Asha" is not
valid. Therefore, there was no valid
substituted service upon the tenantdefendant 2nd set.

(i) The principles of res judicata
as argued by learned counsel for the
plaintiff-respondent shall not apply on the
facts and circumstances of the present
case and also in view of the law laid down
in judgments of this court and of Hon'ble
Supreme Court as discussed above (paras
21 to 26)

31. For all the reasons aforestated,
this petition is allowed. The impugned
order dated 30.04.2019 in Misc. Case
No.45 of 2018 (Shrawan Vs. Javed)
arising from P.A. Case No.01 of 2017,
passed by the Civil Judge (S.D.), Court
No.18, Deoria, is hereby set aside. The
application
4
Ga
filed
by
the
applicant/petitioner is allowed by setting
aside the ex-parte judgment and decree
dated 07.04.2018 in P.A. Case No.01 of
2017. P.A. Case No.01 of 2017 is restored
to its original number with respect to the
tenant-defendant No.4 also.
----------

(2019)10ILR A 1249

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.09.2019

BEFORE

THE HON'BLE ANIL KUMAR, J
THE HON'BLE SAURABH LAVANIA, J
.

Misc. Bench No. 24229 of 2019

Dr. Neetu Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shailendra Misra

Counsel for the Respondents:
C.S.C., Sri Abhinav N. Trivedi

A. U.P. King George Medical University
Act, 2002 - Sections 14 and 23 - First
Schedule - Chapter X- Petitioner is a
Professor (Molecular Biology) at KGMU has
sought a Writ of Quo-warranto against
Respondent No.4 -working as Professor (Stem
Cell/Cell Culture Lab) requiring him to show
cause as to under which Authority of Law he is
holding
the
post
of
Professor-post
of
professor-not a public office-it is merely
employee-writ not maintainable.

Held: - a Teacher/Faculty Member is a fulltime employee of the University- He is neither
an Authority nor an Officer of the University.
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. -
Writ not maintainable.

Writ Petition dismissed (E-8)
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases Cited: -

1. Dr P.S.Venkata Swamy Setty Vs University of
Mysore AIR 1964 Mysore 159

2. The King V.Speyer,(1916))1 KB 595

3. Darley v.R., (1846) 12 537

4. in re, Chakkaral Chettiar , AIR 1953 Mad 96

5. Sivarama Krishnan v.Arumugha Mudliar, (S)
AIR 1957 Mad 17

6. Biman Chandra V. Governor, West Bengal,
AIR 1952 Cal 799

7. V.D.Deshpande v. State of Hyderabad(S)
AIR 1955 Hyderabad 36

8. Dr D.K. Belsare Vs Nagpur University;
(1980) 82 Bom LR 494

9. University of Mysore Vs Govinda Rao AIR
1965 SC 491

10. B. Srinivasa Reddy VS Karnataka Urban
Water Supply and Drainage Board Employees
Association (2006) 11 SCC 731 II

11. Shashi Bhushan Ray Vs Pramatha Nath
Bandopadhyay (1966) SCC Online Cal 153

12. V.C.Shukla v.State(Delhi Admn),(1980)

13. In Re Miram's(1891)IQB 594

14. Agriculture Produce Market Committee VS
Ashok Hariauni and another (2000) 8 SCC 61.

(Delivered by 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 ineligible. 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,
2 All. Dr. Neetu Singh Vs State of U.P. & Ors.
1251
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 QuoWarranto, 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 Quowarranto 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
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
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
sovereignsovereignsovereignsovereignsov
ereignsovereignsovereignsovereignsovere
ignsovereignsovereignsovereignsovereign
sovereignsovereignSovereignSovereignS
overeignSovereignsovereignSovereignso
vereignsovereignsovereignSovereignSove
reignSovereignSovereignsovereignsovere
ignSovereignSovereignSovereignsoverei
gnsovereignsovereignsovereign 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:
2 All. Dr. Neetu Singh Vs State of U.P. & Ors.
1253

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 readvertised 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
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
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 :
2 All. Dr. Neetu Singh Vs State of U.P. & Ors.
1255

"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
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Quowarranto 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 quowarranto 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
quowarranto 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,
2 All. Dr. Neetu Singh Vs State of U.P. & Ors.
1257
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
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Dr. Neetu Singh Vs State of U.P. & Ors.
1259
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
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
''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.
2 All. Dr. Neetu Singh Vs State of U.P. & Ors.
1261

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