# Dr. Syed Akhtar Mehdi Rizvi v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 693
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-18
- **Case number:** Service Single No. 18508 of 2020
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-syed-akhtar-mehdi-rizvi-v-state-of-u-p-ors-45499
- **Pages:** 11

## Headnote

Rules, 2010: Rule 56 (a-1) read with Rule
56 (a-2) -The issuance of writ of quo warrant
is upon discretion of the Court. In the instant
case the Court did not find any substantial
reason against the opposite part no. 3 to grant
the writ of quo-warranto. (Para 26, 27)

Writ Petition rejected. (E-10)

List of Cases cited:-

## Text

12 All. Dr. Syed Akhtar Mehdi Rizvi Vs. State of U.P. & Ors.
693
preceding
paragraphs,
I
am
of
the
considered opinion that the petitioners are
entitled to get all the pensionary benefits after
taking into the consideration the services
rendered by them as daily wagers, prior to their
regularisation, as also the seniority from the
date of engagements as daily wagers; but they
shall not be entitled for the arrears of balance
from the date of their appointments on daily
wage posts since they have already been paid
wages of such period.

17. In the circumstances, the writ
petition is finally disposed off with the
direction to the respondents to make
pensionary benefits to the petitioners after
taking into the consideration the services
rendered by the petitioners as daily wagers,
prior to regularisation, in the light of the
judgements of Prem Singh (Supra) and and
shall also count the services rendered by
the petitioners as daily wagers for the
purpose of seniority. Respondents are
further directed to ensure the payments of
arrears of pension, if any, within three
months from the date of receipt/production
of a copy of this judgment.
----------
(2020)12ILR A693
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Service Single No. 18508 of 2020

Dr. Syed Akhtar Mehdi Rizvi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sanjay Kumar Srivastava, Akshat Kumar.

Counsel for the Respondents:
C.S.C.

A. Practice & Procedure - Maintainability -
U.P. Fundamental Second Amendment
Rules, 2010: Rule 56 (a-1) read with Rule
56 (a-2) -The issuance of writ of quo warrant
is upon discretion of the Court. In the instant
case the Court did not find any substantial
reason against the opposite part no. 3 to grant
the writ of quo-warranto. (Para 26, 27)

Writ Petition rejected. (E-10)

List of Cases cited:-

1. Nand Lal Jaiswal Vs The Secretary, Government of
U.P. & ors. Writ Petition No. 1428 (MB) of 2011

2. Gadde Venkateshwara Rao Vs Govt. of
Andhra Pradesh AIR 1966 SCC 828

3. Hamid Hasan Nomani Vs Banwarilal Roy &
ors. AIR (34) 1947 Privy Council 90

4. The University of Mysore Vs C.D. Govinda
Rao & anr. AIR 1965 Sc 491

5. J.A. Samaj Vs D. Ram AIR 1954 Pat 297

6. Mohammad Tafiuddin & ors. Vs St. of W.B. &
ors. 1979 (2) CLJ 494

7. Arun Kumar Vs U.O.I. AIR 1982 Raj 67

8. Dr. S. Mahadevan Vs Dr. S. Balasundaram &
ors. (1986) 1 Mad LJ 31

9. Devi Prasad Shukla & anr. St. of U.P. & anr.
1989 Lab IC 1086

10. R. Vs Speyer (1916)1 K.B. 595

11. Rex Vs Stacey 99 English Reports 938 (2)

12. Fredric Guilder Julius Vs The Right Rev. The
Lord Bishop of Oxford: The Rev. Thomas
Thellusson Carter 5 Appeal Cases 214 (3)

13. The King exrel Boudret Vs Johnston (1923)
2 Deminion Law Reports 278 (4)

(Delivered by Hon'ble Chandra Dhari Singh, J.)
694 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Initially, the instant writ petition
was filed by the petitioner challenging
Clause 4 of the impugned order dated
31.08.2020 to the extent of posting and
taking over charge on the post of Director/
Principal
Medical
Superintendent,
Balrampur Hospital, Lucknow by Dr.
Rajeev Lochan (opposite party no.3). The
petitioner, inter alia, had further prayed for
a direction to the opposite party no.3 not to
function and work on the said post and also
direct the opposite parties no.1 and 2 to
appoint/ post a regular promoted Director,
Medical and Health Services on the
abovesaid post.

2. The instant writ petition was
entertained by this Court on 02.11.2020
and during the course of argument, on the
objection
raised
by
learned
Counsel
appearing on behalf of the State, the
petitioner had sought for some time to file
an affidavit stating therein that as to how,
the petitioner is affected by the impugned
order.

3. In pursuance to the order dated
02.11.2020,
the
petitioner
filed
an
application bearing No.66564 of 2020
supported by an affidavit, whereby, the
petitioner
had
sought
for
certain
amendments in the pleadings of the writ
petition and also the prayer clause.

4. Considering the submissions of
learned Counsel for the parties and also the
no objection of the State, the application is
allowed.

5. With the consent of the parties, this
Court proceeds to hear the matter finally at
the admission stage.

6.

By
means
of
amendment
application, the petitioner has sought for
quo-warranto restraining the opposite party
no.3 to continue on the post of Director/
Principal
Medical
Superintendent
of
Balrampur Hospital, Lucknow and remove
him forthwith from the said post while
declaring his appointment as illegal and
void. He also prayed for a direction to the
opposite parties no.1 and 2 to hold regular
selection on the said post in accordance
with Rules.

7. Submission of learned Counsel for
the petitioner is that initially the petitioner
was appointed on the post of Medical
Officer vide order dated 18.05.1990 in the
Provincial Medical and Health Service
Cadre, Uttar Pradesh. Later on, the
petitioner was promoted on the post of
Senior
Consultant
(Neuro
Physician)
(Level-IV). At present, the petitioner is
posted as Senior Neuro Physician at
Balrampur Hospital, Lucknow [(Senior
Consultant) (Level-IV)].

8. Learned Counsel for the petitioner
has further submitted that the opposite
party no.3 was initially appointed on the
post of Medical Officer in Provincial
Medical and Health Services Cadre, Uttar
Pradesh. Subsequently, he was promoted
on the next promotional post in the cadre
and lastly, he was promoted to the post of
Additional Director, Medical Health.

9. Learned Counsel for the petitioner
has again submitted that the opposite party
no.3 was never promoted to the post of
Director, Medical and Health Services
rather he was retired on 31.08.2019 from
the post of Additional Director Medical
Health
after
attaining
the
age
of
superannuation. The State Government
while creating an Ex-cadre post of
Additional Director in the department of
Medical and Health Services, Uttar Pradesh
12 All. Dr. Syed Akhtar Mehdi Rizvi Vs. State of U.P. & Ors.
695
had re-appointed/ re-employed the opposite
party no.3 on the said Ex-cadre post for one
year vide order dated 31.08.2019 and
directed him to hold the post of Officiating/
In-charge, Director/ Principal Medical
Superintendent,
Balrampur
Hospital,
Lucknow
during
re-appointment/
reemployment. Vide order dated 31.08.2020,
the re-appointment/ re-employment of the
opposite party no.3 was extended for a
period of three years.

10. It has also been submitted by
learned Counsel for the petitioner that
considering the increase of outdoor and
indoor patient of specialist doctors and in
order to provide medical facilities to poor
people,
the
State
Government
vide
Government Order dated 13.01.2014 had
decide to re-appoint/ re-employed the
retired specialist doctor of Provincial
Medical and Health Cadre upto the age of
65 years. Thereafter, vide Government
Order
dated
19.07.2017,
the
State
Government
after
considering
the
abovesaid increase of outdoor and indoor
patient had decided to give re-appointment/
re-employment to the retired MBBS
Medical Officers upto the age of 65 years
or regularly selected
candidate from
Commission whichever is earlier on the
post of "Consultant". While issuing the
Government Orders dated 13.01.2014 and
19.07.2017, it was clarified that the
abovesaid re-appointment/ re-employment
shall be given only to Specialist Doctors/
Consultants but they have not discharged
any administrative post and during the said
period they will not be given any cadre
post. From the abovesaid Government
Orders, it is clear that firstly the opposite
party no.3 is not doing any work of
Specialist Doctor and secondly, in view of
the provisions of said Government Orders,
posting of opposite party no.3 on the
administrative post of In-charge Director/
Principal
Medical
Superintendent,
Balrampur Hospital, Lucknow is totally
illegal and arbitrary and without any
authority.

11. It has been contended by learned
Counsel for the petitioner that instead of
giving posting to any regular selected and
promoted Director, Medical and Health
Services like the petitioner on the post of
Director/ Principal Medical Superintendent,
Balrampur Hospital, Lucknow, the opposite
party no.1 is continuously give posting to
opposite party no.3 on the said post, which
is against the provisions of Government
Orders dated 13.01.2014 and 19.07.2017
and the Fundamental Rules. As per the
provisions of Service Rules, 2004 and
amendment Rules, 2011, the post of
Director/ Principal Medical Superintendent,
Balrampur
Hospital,
Lucknow
is
a
promotional post and because of illegal
appointment of opposite party no.3, who
has no requisite qualification for the said
post, the petitioner as well as other doctors
could not be considered for promotion,
which is totally illegal, arbitrary and not
only in violation of statutory provisions of
Service Rules but also in violation of the
provisions of Articles 14 and 16 of the
Constitution of India. From the perusal of
the Service Rules, 2004, amended Rules
2011 as well as in view of the provisions of
Rule 56 (a-1)(a-2) of Financial Hand Book
Vol-II Part 2 to 4, the opposite party no.3
cannot be appointed on the post in
question.

12. Learned Counsel for the petitioner
has again contended that on similar facts, a
Writ Petition No.190 (SB) of 2014
[Provincial
Medical
Services
Welfare
Association through General Secretary Vs.
State of U.P. and others] was filed before
696 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court and the Division Bench vide
order dated 30.05.2014 had held that the
extension in service given to Dr. Baljit
Singh Arora on the post of Director
General, Medical and Health Services was
not in accordance with law rather the same
was not only in violation of provisions of
Articles 14 and 16 of the Constitution of
India but also in violation of the Service
Rules because of under favour given by the
Minister concerned out of way and
forfeiting the valuable legal rights of other
eligible officers those who are waiting in
queue for promotion and posting on the
said post in question.

13. So far as the locus standi to
challenge the appointment of opposite party
no.3 is concerned, it has been submitted by
learned Counsel for the petitioner that
admittedly the office of Director/ Principal
Medical
Superintendent,
Balrampur
Hospital, Lucknow is a public office and
the abovesaid question has already been
decided by this Court vide judgment and
order dated 10.01.2012 passed in Writ
Petition No.1428 (MB) of 2011 (Nand Lal
Jaiswal Vs. The Secretary, Government of
U.P. and others). Vide judgment and order
dated 10.01.2012, the Division Bench
while relying upon the law laid down by
Hon'ble Apex Court in the case of Gadde
Venkateswara Rao Vs. Government of
Andhra Pradesh; AIR 1966 SCC 828 has
held that the petitioner being General
Secretary of the Employees' Union seems
to possess locus standi to prefer the writ
petition. It has also been held that a writ in
the nature of quo warranto, as held by the
Supreme Court, may be filed by any person
challenging the right of authority to hold
public office.

14. Per contra, learned Counsel
appearing on behalf of the State has
vehemently opposed the submissions of
learned Counsel for the parties and
submitted that the instant writ petition is
nothing but only an arm-twisting and
misconceived. The petitioner is habitual to
file such frivolous petitions against the
department before this Court. There is no
illegality in the impugned order. The State
Government has rightly extended the
service of opposite party no.3.

15. Learned Counsel appearing on
behalf of the State has further submitted
that the extension has been given to the
opposite party no.3 in public interest. The
State Government has power to grant
extension under Clause 56(a-2) of U.P.
Fundamental (Second Amendment) Rules,
2010. Learned Counsel appearing on behalf
of the State has again submitted that the
petitioner has no locus standi to prefer such
writ petition and, therefore, the instant writ
petition is liable to be dismissed.

16. I have considered the submissions
of learned Counsel for the parties and
perused the material available on record.

17. Before entering into the merits of
the case, it would be appropriate to
reproduce the impugned order dated
31.08.2020 for ready reference:

"izknsf'kd fpfdRlk ,oa LokLF; lsok laoxZ ds vij
funs'kd xzsM ds fpfdRlkf/kdkjh Mk0 jktho ykspu izHkkjh
funksd@izeq[k fpfdRlk v/kh{kd] cyjkeiqj] fpfdRlky;
y[kuÅ tks viuh vf/ko"kZrk vk;q iw.kZ dj fnuk¡d 31-082019 dks lsok fuo`fRr gq, dks 'kklu ds dk;kZy; Kki
la[;k&2976@jksd&2&ik¡p&2019 fnuk¡d 31-08-2019 ds
}kjk dk;ZHkkj xzg.k djus dh frfFk ls 01 o"kZ rd ds
fy, vij funs'kd ds ,d fuloxhZ; in l`ftr djrs
gq, mDr fuloxhZ; in ij fuEufyf[kr 'krkZsa ds v/khu
iqufuZ;kstu fd;s tkus ds vkns'k fuxZr fd;s x;s gSa%&

1⁄411⁄2& iquZ;kstu dh vof/k eas Mk0 jktho ykspu
dks for 1⁄4lkekU; vuqHkkx&3 ds 'kklukns'k fnuk¡d 15-
12 All. Dr. Syed Akhtar Mehdi Rizvi Vs. State of U.P. & Ors.
697
12-1983 ds vuqlkj ;g fu;r osru vuqeU; gksxk tks
iquZ;ksftr dkfeZd }kjk lsokfuof`Rr ds le; izkIr
vfUre osru esa ls 'kq) isa'ku 1⁄4jkf'kdj.k ds iwoZ1⁄2 dks
?kVk dj izkIr gks vFkok iquZ;kstu in ij osrueku dk
vf/kdre, nksuksa esa ls tks de gksA

1⁄421⁄2& iqu;kZstu dh vof/k esa Mk0 jktho ykspu
vius fpfdRldh; dk;kZsa dk fuoZgu iwoZor djrs
jgsaxsA

1⁄431⁄2& iqu;ksZtu dh vof/k esa Mk0 jktho ykspu
dks vLFkk;h ljdkjh lsod ekurs gq, foRrh; fu;e
laxzg ds [k.M&2 Hkkx&2 ls 4 ds lgk;d
fu;e&157, rFkk jkT; ljdkj }kjk le;≤ ij ikfjr
vkns'kksa ds vuqlkj vLFkk;h deZpkjh dh Hkk¡fr
vkdfLed vodk'k vuqeU; gksxk] fdUrq vftZr
vodk'k dks uxnhdj.k vuqeU; ugha gksxkA

1⁄441⁄2& iqu;ksZtu vof/k dh x.kuk isa'ku gsrq ugha
dh tk;sxhA

1⁄451⁄2& iqu;ksZtu dh vof/k esa Mk0 jktho ykspu
dks ;k=k HkRrk rFkk nSfud HkRrs muds osru ,oa isa'ku
ds ;ksx ds vuqlkj vuqeU; njksa ij] ;k=k HkRrk
fu;e&16&,& ds vuqlkj ns; gksaxsA

6& Mk0 jktho ykspu dk iquZ;ksZtu fdlh Hkh
le; lekIr djus dk vf/kdkj 'kklu esa fufgr gksxkA

2& pw¡fd mDr in ds Hkfo"; esa pyrs jgus ds
laHkkouk gS vkSj ftu mn~ns';ksa dh iwfrZ ds fy, mDr
in lqftr fd;k x;k Fkk] mldh vko';drk vHkh Hkh
fo|eku gksus ds n`f"Vxr Jh jkT;iky vij funs'kd
ds mDr fu%laoxhZ; in dh fujUrjrk fnuk¡d 28-022021 rd c<+k;s tkus rFkk mDr in ij Mk0 jktho
ykspu dh] dh x;h iqu;ksZtu dh vof/k dks ,d o"kZ
ds fy, foLrkj fn;s tkus dh lg"kZ Lohd`fr iznku
djrs gSaA

3& mi;qZDr ds lEca/k esa gksus okyk O;; pkyw
foRRkh; O;; ds vk;&O;;d ds vuqnku la[;k&32 ds
vUrxZr ys[kk'kh"kZd&2210&fpfdRlk rFkk yksd LokLF;
1⁄4,yksiSFkh foHkkx1⁄2 1⁄4v;kstusRrj i{k1⁄2 &01 'kgjh LokLF;
lsok,a&110& vLirky rFkk vkS"k/kky;&04 ,yksiSFkh
,dhd`r fpfdRlky; vkSj vkS"k/kky; ds ukes Mkyk
tk;sxkA

4& Mk0 jktho ykspu fu;fer O;oLFkk
gksus@vxszrj vkns'kksa rd izHkkjh funs'kd@izeq[k
fpfdRlk v/kh{kd] cyjkeiqj fpfdRlky;] y[kuÅ ds
in dk dk;Z ns[krs jgsaxsA

5& mDr vkns'k for foHkkx ds v'kkldh; i=
la[;k&bZ&3&805@nl&2020 fnuk¡d 31-08-2020 esa
izkIRk mudh lgerh ls tkjh fd;s tk jgs gSaA"

18. Vide order dated 31.08.2020, the
services of the opposite party no.3 have
been extended for three years on the post of
Director/ Principal Medical Superintendent,
Balrampur Hospital, Lucknow. As per Rule
56 (a-1) read with Rule 56(a-2) of the U.P.
Fundamental Second Amendment Rules,
2010, the State Government may extend the
services of a Government Servant after the
age of superannuation. The services of the
Government Servant may be extended in
public interest with the prior approval of
the Cabinet. The petitioner has failed to
make out any case or produce any
document to show that the extension of the
petitioner is against the provisions of
Fundamental
Rules
as
well
as
the
Government Orders dated 13.01.2014 and
19.07.2020. The petitioner also failed to
show that the opposite party no.3 is not a
qualified person for the post in question.
There is no averment that the opposite
party no.3 does not possess the required
qualification.

19. The Privy Council in a case
reported in AIR (34) 1947 Privy Council 90
Hamid Hasan Nomani vs. Banwarilal Roy
and others, while considering the nature of
quo warranto observed that an information
in the nature of quo warranto is the modern
procedure replacing the obsolete High
Prerogative Writ of quo warranto. It is used
to try the civil right to a public office.

20. The Hon'ble Supreme Court in a
case reported in AIR 1965 SC 491, The
University of Mysore vs. C.D.Govinda Rao
and another had relied upon the definition
given in Halsbury's Law of England, to
quote relevant portion:-

"An information in the nature of quo
warranto took the place of the obsolete writ
of quo warranto which lay against a person
who claimed or usurped an office,
franchise, or liberty, to enquire by what
698 INDIAN LAW REPORTS ALLAHABAD SERIES
authority he supported his claim, in order
that the right to the office or franchise
might be determined." Broadly stated, the
quo warranto proceeding affords a judicial
enquiry in which any person holding an
independent substantive public office, or
franchise, or liberty, is called upon to show
by what right he holds the said office,
franchise or liberty; if the inquiry leads to
the finding that the holder of the office has
no valid title to it, the issue of the writ of
quo warranto ousts him from that office. In
other words, the procedure of quo
warranto confers jurisdiction and authority
on the judiciary to control executive action
in the matter of making appointments to
public offices against the relevant statutory
provisions; it also protects a citizen from
being deprived of public office to which he
may have a right. It would thus be seen that
if these proceedings are adopted subject to
the conditions recognised in that behalf,
they tend to protect the public from
usurpers of public office; in some cases,
persons not entitled to public office may be
allowed to occupy them and to continue to
hold them as a result of the connivance of
the executive or with its active held, and in
such cases, if the jurisdiction of the Courts
to issue writ of quo warrnto 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 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."

21. In the case of J.A. Samaj vs. D.
Ram; AIR 1954 Pat 297, election to the
Working Committee of the Bihar Rajya
Arya Pratinidhi Sabha, was challenged by a
Writ of Quo Warranto, the Hon'ble High
Court of Patna, held thus:-

"The
remedy
which Article
226
contemplates is a, public law remedy for
the protection and vindication, of a public
right. It is essential in this connection to
remember that there is a distinction
between jus privatum and jus publicum
which is the most fundamental distinction
of corpus juris. This Roman distinction has
been carried into modern law and the
scope of public law in this context
embraces all the rights, and duties, of
which the State or some individual holding
in
W.P.No.24464
of
2019
delegated
authority under it, is one part and the
subject is the other part. The language of
the Article 226 supports the inference that
the remedy is provided only for the
assertion of a public law right. Article 226
states that the High Court shall have power
to issue to any person or authority,
including
it
appropriate
cases
any
Government, directions, orders or writs,
including writs in the nature of habeas
corpus, man damns, prohibition, quo
warranto and certiorari. All these writs are
known in English law as prerogative writs,
the reason being that they are specially
associated with the King's name. These
writs
were
always
granted
for
the
protection of public interest and primarily
by the Court of the King's Bench. As a
matter of history the Court of the King's
Bench, was held to be coram rege ipso and
was
required
to
perform
quasigovernmental functions. The theory of, the
English law is that the King himself
superintends the due course of justice
through his own Court--preventing cases of
usurpation of jurisdiction and insisting on
vindication of public rights and personal
freedom of his subjects. That is the theory
12 All. Dr. Syed Akhtar Mehdi Rizvi Vs. State of U.P. & Ors.
699
of the English law and our Constitution
makers have borrowed the conception of
prerogative writs from the English law. The
interpretation of Article 226 must therefore
be considered in the background of English
law and so interpreted, it is obvious that
the remedy provided under Article 226 is a
remedy for the vindication of a public
right."

22. In the case of Mohammad
Tafiuddin and others Vs. State of West
Bengal and others; 1979 (2) CLJ 494, at
paragraph Nos.13 to 16, the Hon'ble High
Court of Calcutta, held thus:-

"13. In terms of the determinations in
the case of Hamid Hasan Vs. Banwarilal
Roy and others; AIR 1947 P. C. 90 an
information in the nature of quo warranto
is the modern from of the obsolete writ of
quo warranto, which lay against a peon,
who claimed or usurped in 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. It has also been observed to be
a remedy to try the Civil right to a public
office. In view of the determinations in the
case of University of Mysore Vs. Govinda
Rao; MANU/SC/0268/1963 : AIR 1965 SC
491 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 statutory, provisions or statutes, it
also protects a subject from being deprived
or public office, to which he may have a
right. As observed in the case of Statesman
(P)
Ltd.
Vs.
H.R.
Deb;
MANU/SC/0123/1968 : AIR 1968 SC 1495
the High Court in a proceeding for quo
warranto
should
be
also
in
its
pronouncement unless there is a case of
infringement of law.

14. A Writ of quo warranto is not the
same
as
a
Writ
of
Certiorari,
or
Prohibition or Mandamus and in a such a
proceeding for quo warranto, it is not
necessary for the applicant to establish that
he has been prejudicially affected by any
wrongful act of public nature or that his
fundamental right is infringed or that he is
denied any legal right or that any legal
duty is owed to him. The scope of a
proceeding for quo warranto is very limited
and it is only for the determination,
whether the appointment of the Respondent
is by a proper authority and in accordance
with law, if there is some express statutory
provision. The High Court's power of
interference in a proceeding for quo
warranto is also limited and it cannot act
as an appellate authority. Quo warranto, in
terms of the determination in the case of
Bhaimlal Chunilal Vs. State of Bombay;
MANU/MH/0030/1954 : AIR 1954 Bom.
116 is a remedy given in law at the
discretion of the Court and is not a
proceeding or a writ of course. The High
Court can in a proceeding for quo
warranto, as observed in the case of Lalit
Mohan
Das
Vs.
Biswanath
Ghosh;
MANU/WB/0250/1951 : AIR 1952 Cal.
868, issue an order not only prohibiting an
officer from acting in an office to which he
is not entitled, but can also declare the
Office to be vacant. As observed in Hamid
Hasans case (Supra) information in the
nature of quo warranto is in nature of a
Civil proceedings and such writ can be
issued when a post created under or by a
statute or a public office, is usurped
wrongly, illegally or without any authority.
The tests of public office, as observed in the
case of Sashi Bhusan Ray v. Pramatha
Nath
Bandopadhaya
MANU/WB/0366/1966 : 70 CWN 892, are
whether to the duties of office are of public
nature and whether it is a substantive office
700 INDIAN LAW REPORTS ALLAHABAD SERIES
under a statute. It has been held and
observed in the case of Amarendra
Chandra Aich Vs. Narendra Kumar Basu;
MANU/WB/0036/1953 : 56 CWN 449, that
a writ of quo warranto will not be available
in respect of an office of private nature.

15.
Thus,
in
terms
of
the
determinations an the case of University of
Mysore v. Govinda (Supra) the first and
foremost criteria for the issue of a writ of
quo warranto should be that the office must
be
public
and
pursuant
to
the
determinations in the case of Shyabudinsab
Mohidinsate
Akki
v.
Gadaj
Belgeri
Municipal Borough AIR 1975 SC 314, a
proceeding for quo war- ranto will not be
in respect of office ox a private charitable
institution or of a private association and
the test of a public office is whether the
duties of the office are public nature. On
the
basis
of
the
determinations
as
mentioned above, it can also be deduced
that the office moist be substantive in
character and must be, as mentioned
hereinbefore created by statute or by
Constitution itself. So neither the statutory
nor constitutional character being satisfied
in the instant case is so far the offices of
Respondent Nos. 4 or 7 of 18 (a), I am of
the
view
that
even
inspite
of
the
determinations on merit, the petitioners
would not be entitled to the issue of a writ
of quo warranto.

16. In order to succeed in obtaining a
writ or an order in the nature of
Mandamus, which is the second prayer the
petitioners must "establish that he has a
legal right to the performance by the
opposite party of legal duty imposed by a
statute and such right must exist at the date
of the petition. A mandamus will not issue if
the duty required to be performed is
discretionary. A mandamus will also not
issue to compel the performance of
anything which an authority has the power
to do unless the power becomes coupled
with a duty. " it is not all wrong which can
be cured by a writ of Mandamus.
Mandamus literally means a command. It is
a demand for some activity on the part of
the body or persons to whom it is
addressed. In view of the character of
entitlement and more particularly when the
petitioners have a legal right to the
performance of duty or obligation by the
authority concerned in terms of Article 154,
which in my view has not been duly
discharged in the formation of the said
Board or delegation of powers to the same,
the same being neither a statutory body nor
a body or authority under the Constitution
of India, the petitioners can claim the issue
of a Mandamus, requiring the notifications
as impeached not to be given effect to.
Thus, the second prayer of the petitioners
should succeed."

23. In Arun Kumar Vs. Union of
India; AIR 1982 Raj 67, in para 4 to 6, the
Rajasthan High Court has held as under:

"4. Article 226 of the Constitution
empowers the High Court to issue to any
person
or
authority
including
the
Government
within
its
territorial
jurisdiction, directions, orders or writs in
the
nature
of
mandamus,
certiorari
prohibition
or
quo-warranto
for
the
enforcement of fundamental rights or for
the enforcement of the legal rights and for
any other purpose.

5. The founding fathers of the
Constitution have couched the Article in
comprehensive phraseology to enable the
High Court to remedy injustice wherever it
is found, but it is equally true that a person
invoking the extraordinary jurisdiction of
this Court should be an aggrieved person.
If he does not fulfil the character of an
aggrieved person and is a 'stranger' the
12 All. Dr. Syed Akhtar Mehdi Rizvi Vs. State of U.P. & Ors.
701
Court will, in its discretion, deny him this
extraordinary remedy save in very special
and
exceptional
circumstances.
The
petitioner challenging the order must have
some specialised interest of his own to
vindicate, apart from a political concern,
which belongs to all. Legal wrong requires
a judicial and enforceable right and the
touchstone to the justiciability is injury to
legally
protected
right.
A
nominal,
imaginary, a highly speculative adverse
effect to a person cannot be said to be
sufficient
to
bring
him
within
the
expression of "aggrieved person". The
words "aggrieved person" cannot be
confined within the bounds of a rigid
formula. Its scope and meaning depends on
diverse facts and circumstances of each
case, nature and extent of the petitioner's
interest and the nature and extent of the
prejudice or injury suffered by him.

6. Any information in the nature of
quo warranto would not be issued, and an
injunction in lieu thereof would not be
granted as a matter of course. It is in the
discretion of the Court to refuse or grant it
according to the facts and circumstances of
each case. The Court would inquire into
the conduct and motive of the applicant and
where there are grounds for supposing that
the relator was not the real prosecutor but
was the instrument of other persons and
was applying in collusion with stranger, the
Court may refuse to grant a writ of quo
warranto."

24. The Madras High Court in the
case of Dr. S. Mahadevan Vs. Dr. S.
Balasundaram and others; (1986)1 Mad
LJ 31 held as under:

"For the issuance of a writ of quo
warranto, the court asks the question --
Where is your warrant of appointment? It
enjoins an enquiry into the legality of the
claim which the party asserts to an office
and if the appointment and holding on to
the office are illegal and violative of any
binding rule of law, then the court shall
oust him from his enjoying thereof. This
Court, within the scope of the enquiry for
the issuance of a writ of quo warranto, is
not concerned with any other factor except
the well laid down factors: which require
advertence to and adjudication. The
existence of the following factors have
come to be recognised as conditions
precedent for the issuance of a writ of quo
warranto: (1) the office must be public; (2)
the office must be substantive in character,
that is, an office independent of in title; (3)
the office must have been created by statute
or by the Constitution itself; (4) the holder
of the office must have asserted his claim to
the
office;
and
(5)
the
impugned
appointment must be in clear infringement
of a provision having the force of law or in
contravention of any binding rule of law.
This Court shall not frown upon an
appointment to the office on the ground of
irregularity, arbitrariness or caprice or
mala fides and these features, even if they
are present, could not clothe this court with
the power for the issuance of a writ of quo
warranto. The scope of the enquiry is
riveted to only the aforesaid factors.
Prerogative writs, like the one for quo
warranto, could be and should be issued
only within the limits, which circumscribe
their issuance. It is not possible to widen
their limits. A writ of quo warranto is of a
technical nature. It is a question to an
alleged usurper of an office to show the
legal authority for his appointment and
holding on to it. If he shows his legal
authority, he cannot be ousted from the
office. The invalidity of the appointment
may arise either for want of qualifications
prescribed by law or want of authority on
the part of the person who made the
702 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment, or wants of satisfaction of the
statutory provisions or conditions or
procedure governing the appointment and
which are mandatory. This Court, under
Article 226 of the Constitution, can issue a
writ of quo warranto only if the salient
conditions delineated above stand satisfied
and not otherwise."

25. In Devi Prasad Shukla and
another Vs. State of Uttar Pradesh and
another; 1989 Lab IC 1086, at paragraph
No.34, the Hon'ble Allahabad High Court,
held thus:-

"34. To illustrate the point, we may
mention that in a writ petition even the
person called upon to show whether he
possesses the necessary qualifications
prescribed for that office can also be asked
whether the authority which he produces is
by the person who is authorised to make
appointment to the Office which he holds.
By showing that he possesses the necessary
qualifications by demonstrating that there
is no legal impediment in the way of his
appointment to the office and by showing
that the person who issued the appointment
or warrant of his appointment is authorised
by law to do so, no writ of quo warran-to
will be issued against him. If all these
things are demonstrated by him in his
favour, he cannot be said to be a usurper."

26. A writ of quo warranto poses a
question to the holder of a public office. In
plain English language, the question is
"where is your warrant of appointment by
which you are holding this office ?" In its
inception in England such a writ was a writ
of right issued on behalf of the Crown
requiring a person to show by what
authority he exercised his office, franchise,
or
liberty.
Webster's
Third
New
International
Dictionary,
Volume
II,
describes it as "a legal proceeding that is
brought by the state, sovereign, or public
officer, has a purpose similar to that of the
ancient writ of quo warranto, is usually
criminal in form and sometimes authorizes
the imposition of a fine but is essentially
civil in nature and seeks to correct often at
the relation or on the complaint of a private
person a usurpation, misuser, or nonuser of
a public office or corporate or public
franchise, and may result in judgements of
ouster against individuals and of ouster and
seizure against corporations." Halsbury's
Laws of England, Third Edition, Volume
11, Para 281(1) contains a summary of the
decisions of English Courts with regard to
the discretion of the Court in issuing a writ
of quo warranto. It is said that "An
information in the nature of a quo warranto
was not issued, and an injunction in lieu
thereof will not be granted, as a matter of
course. It is in the discretion of the Court to
refuse or grant it according to the facts and
circumstances of the case . . . . the Court
might in its discretion decline to grant a
quo warranto information where it would
be vaxatious to do so, or where an
information would be futile in its results, or
where there was an alternative remedy
which
was
equally
appropriate
and
effective." The leading case on the subject
of quo warranto from which many of the
statements are derived is R. v. Speyer,
(1916) 1 K.B. 595. Lord Reading, Chief
Justice has observed: "If the irregularity in
the appointment of an office held at
pleasure could be cured by immediate
reappointment, the Court in the exercise of
its discretion would doubtless refuse the
information." Lush, J. expressed the view
that the Court would not make an order
ousting the holders of public offices from
their office if the existing defect, if there is
one, could be cured, and they could be
reappointed. Rex v. Stacey, 99 English
12 All. Sulochana Devi Vs. State of U.P. & Ors.
703
Reports 938 (2) holds that writ of quo
warrant, is not a motion of course and it is in the
discretion of the Court to issue it considering the
circumstances of the case. Frederic Guilder
Julius v. The Right Rev. The Lord Bishop of
Oxford: The Rev. Thomas Thellusson Carter, 5
Appeal Cases 214 (3) also states that the issue of
writ of quo warranto is in the discretion of a
Court. The Canadian view as stated in The King
exrel Boudret v. Johnston, (1923) 2 Deminion
Law Reports 278 (4) is that the Court has to take
into
consideration
public
interest,
the
consequences to follow the issue of a writ of quo
warranto and all the circumstances of the case.
These general propositions have been accepted
in America as appears from the statements
contained in sections 5, 9, 10 and 18 in American
Jurisprudence, Second Edition, Volume 65.

27. In the instant case, the allegations are
made against the opposite party no.2 and even
taking it for granted that there is any misuse of
power, and consequentially the contention that
the said extension has been made without
approval without any supporting material,
argument of non-approval of the cabinet as
required under the provisions of Fundamental
Rules, I do not find anything against the opposite
party no.3 and, therefore, mere submission of
illegality in the appointment of opposite party
no.3 would not attract a writ of quo-warranto.

28. In the light of the above discussion and
decisions, prayer sought for quo-waranto is not
maintainable. Accordingly, writ petition is
dismissed. No costs.
----------
(2020)12ILR A703
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.11.2020
BEFORE

THE HON'BLE MANISH MATHUR, J.

Service Single No. 21802 of 2020
Sulochana Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajesh Kumar Verma.

Counsel for the Respondents:
C.S.C., Rajiv Singh Chuahan

A. Service Law-Compassionate Appointment
-U.P.
Recruitment
of
Dependents
of
Government Servant Dying in Harness Rules,
1974: Rules 2(c), 2(c)(iii) - Exclusion of married
daughters from the ambit of the expression 'family'
has been held to be illegal and unconstitutional,
being violative of Articles 14 and 15 of the
Constitution of India. (Para 10)

B. A statute or a provision of statute which is
struck
down
as
being
ultra
vires
to
Constitution
of
India
or
any
of
the
fundamental rights applies retrospectively
since it goes against the very basic tenets of
the Constitution of India - The striking down of
exclusion of married daughter from the ambit of
family being held to be violative of fundamental
rights, operates retrospectively. (Para 11)

In the present case, the rejection order has
been passed in the year 2019 while the
judgment
rendering
the
abovementioned
provision unconstitutional has been given in the
year 2015. Petitioner's candidature was kept
alive by opposite parties themselves till the year
2019. Therefore, by prospective application of
the aforesaid judgment, petitioner's candidature
could not been rejected on the ground of being
a married daughter. (Para 13)

Writ Petition allowed. (E-4)

Precedent followed:

1. Smt. Vimla Srivastava Vs St. of U.P. & anr.,
[Writ-C No. 60881 of 2015] (Para 4)

2. Assistant Commissioner, Income Tax, Rajkot
Vs Saurashtra Kutch Stock Exchange Ltd.,
(2008) 14 SCC 171 (Para 12)

(Delivered by Hon'ble Manish Mathur, J.)