# Kundan Singh v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** Special Appeal Defective No. 520 of 2019
- **Bench:** Pankaj Kumar Jaiswal, Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kundan-singh-v-state-of-u-p-ors-45674
- **Pages:** 8

## Headnote

A. Allahabad High Court Rules, 1952 -
Chapter VIII Rule 5 & Constitution of
India - Article 226 - challenge to- Public
office-
appellant
challenged
the
appointment of one Doctor as a professor
who later became vice-chancellor- Since,
post of professor is not mentioned as
officer in Chapter III of the King George
Medical University Act, 2002 - only post
of Vice -chancellor shown in the officers
of the university- writ of quo warranto
would not lie. (Para 23, 24, 27, 32, 33)

"Public Office" which would, fall under the
scrutiny of the Court's while exercising the
discretionary power of issue a writ of quo
warranto would be the offices created by the
1 All. Kundan Singh Vs. State of U.P. & Ors.
1711
Constitution or any statute and such offices
should have a fixed tenure apart from being
conferred some portion of the sovereign power
of the Government. (Para 22)

Special Appeal (D) dismissed. (E-6)

List of cases cited: -

## Text

1710 INDIAN LAW REPORTS ALLAHABAD SERIES
no departmental action has been initiated
against them.

23. However, the impugned transfer
order does not suffer from any illegality or
arbitrariness, but the fact remains that this
Court has granted interim protection in
favour
of
the
petitioners
and
no
departmental action against the petitioners
have been taken for not submitting their
respective joining at the transferred place,
therefore, it appears that any appropriate
order is required to be passed in the case
of the petitioners.

24. The impugned order dated
18.12.2018 is neither stigmatic nor has
been passed to accommodate the private
respondent, rather, it has been passed by
the Competent Authority i.e. the Chief
Medical Officer.

25. Further, since no departmental
action has yet been taken against the
petitioners due to pendency of the writ
petition,
therefore,
in
the
given
circumstances
they
should
not
be
compelled to face the departmental inquiry
for not submitting their respective joining
at the transferred place, however for the
period they have not submitted their
joining at the transferred place despite the
fact that before interim protection being
granted in their favour they were relieved,
the Chief Medical Officer, Lucknow may
pass appropriate orders in respect of
making payment of salary for that period
by affording an opportunity of hearing to
the petitioners and seeking explanation if
any order involves the civil consequences.

26. The liberty is given to the
petitioners to prefer a representation taking
all pleas and grounds which are available
with them enclosing therewith the certified
copy of this order within a period of seven
days and the Competent Authority shall pass
appropriate orders, strictly in accordance with
law, with expedition, preferably within a
period of three weeks thereafter.

27. In view of the aforesaid terms, both
the writ petitions are disposed of finally.

28. No order as to costs.
----------
(2020)1ILR 1709

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.01.2020

BEFORE
THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE ALOK MATHUR, J.

Special Appeal Defective No. 520 of 2019

Kundan Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Dr. V.K. Singh

Counsel for the Respondents:
C.S.C., Abhinav N. Trivedi, Gyanendra Kumar Srivastav

A. Allahabad High Court Rules, 1952 -
Chapter VIII Rule 5 & Constitution of
India - Article 226 - challenge to- Public
office-
appellant
challenged
the
appointment of one Doctor as a professor
who later became vice-chancellor- Since,
post of professor is not mentioned as
officer in Chapter III of the King George
Medical University Act, 2002 - only post
of Vice -chancellor shown in the officers
of the university- writ of quo warranto
would not lie. (Para 23, 24, 27, 32, 33)

"Public Office" which would, fall under the
scrutiny of the Court's while exercising the
discretionary power of issue a writ of quo
warranto would be the offices created by the
1 All. Kundan Singh Vs. State of U.P. & Ors.
1711
Constitution or any statute and such offices
should have a fixed tenure apart from being
conferred some portion of the sovereign power
of the Government. (Para 22)

Special Appeal (D) dismissed. (E-6)

List of cases cited: -

1. Bharati Reddy Vs. St. of Karnataka, (2018) 6
SCC 162

2. B. Srinivasa Reddy Vs. Karnataka Urban
Water Supply & Drainage Board Employees'
Assn., (2006) 11 SCC 731 (2)

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

1. Heard Sri Amit Bose, Senior
Advocate assisted by Dr. V.K. Singh,
learned counsel for the appellant, Sri
Manish Mishra, learned counsel for
respondent no. 1, Sri Anil Kumar Tewari,
Senior Advocate assisted by Sri Abhinav
N. Trivedi, learned counsel for respondent
nos. 2 and 4 and Sri Gyanendra Kumar
Srivastava, learned counsel for respondent
no. 5.

2. This special appeal has been filed
with delay of seven days. The delay
condonation application no. 132204 of 2019,
supported by an affidavit has been filed for
condonation of delay in filing the appeal.
The learned counsels for the respondents
have no objection to the application. The
cause shown in the affidavit explaining the
delay in filing the appeal is sufficient and the
delay is hereby condoned.

3. This special appeal under Chapter
VIII Rule 5 of the Allahabad High Court
Rules, 1952 has been filed against the
judgment and order dated 16.08.2019,
passed by the learned Single Judge in Writ
Petition No. 19119 (S/S) of 2019 - Kundan
Singh Vs. State of U.P. and Others.

4. The aforesaid writ petition was
filed by the petitioner seeking writ in the
nature of quo-warranto, directing the
opposite party no. 3 (Dr. M.L. Bhatt) to
show authority of law under which he
occupied the post of Associate Professor
and Professor in the King George's
Medical University (hereinafter referred to
as "the KGMU") thereby declaring his
appointment on the post of Associate
Professor and Professor to be illegal and
void abinitio.

5. It was submitted by the petitionerappellant before the writ Court that
respondent no. 3 was appointed as
Assistant Professor in the KGMU on
27.04.2002,
Associate
Professor
on
02.12.2003 and Professor on 08.12.2004,
contrary to the Act, Statute, Regulations
prevailing in the KGMU. However, he
became Vice Cancellor of the KGMU in
the month of March, 2017. It was further
submitted that Dr. M.L. Bhatt, respondent
no. 3 was granted promotion in utter
violation of the Rules and norms existing
without
any
selection
committee
constituted for the said purpose, even the
date of his confirmation or the conversion
of the same in permanent nature is without
jurisdiction.

6. The aforesaid writ petition was
contested by the KGMU by filing counter
affidavit, questioning the maintainability
of the writ petition. Another objection
which was raised by the respondents with
regard to the maintainability of the writ
petition was that the petitioner did not
challenge
the
present
posting
of
respondent
no. 3
inasmuch
as
the
respondent no. 3 is discharging the
functions of Vice Chancellor of the
KGMU and his tenure would expire in the
month of April, 2020. It was submitted
1712 INDIAN LAW REPORTS ALLAHABAD SERIES
that writ of quo warranto has been sought
by the petitioner against respondent no. 3,
to show authority of law under which he
occupied the post of Associate Professor
and Professor at the KGMU, which posts
are not being occupied by him presently
and he is not usurper of Office and
therefore, no writ of quo warranto would
lie to challenge occupation of office which
is not held by the incumbent at the time of
filing of writ petition.

7. The respondents had also raised
objection that the writ of quo warranto
would lie only to challenge the occupation
of "public office" and the posts of
Associate Professor and Professor would
not qualify to be called as "public office"
and therefore, writ of quo warranto would
not be issued by this Court in exercise of
powers
under
Article
226
of
the
Constitution of India. It was lastly
submitted on behalf of respondents with
regard to bonafide of the petitioner in
preferring the writ petition seeking writ of
quo warranto challenging the office
occupied by respondent no. 3 after a delay
of more than fifteen years.

8. The learned Single Judge while
dismissing the aforesaid writ petition has
considered the submissions made by the
parties in great detail and in paragraph 7 it
has been observed as under :

"7.
The
obvious
question
cropped up in the mind of the Court as to
why no challenge was made in the year
2003 when the opposite party no. 3
became Associate Professor and in the
year 2004 when he became Professor. Not
only the above the aforesaid position of
the opposite party no. 3 has not been
assailed by the petitioner till filing of this
writ petition when admittedly the opposite
party no. 3 is discharging the duties and
liabilities of Vice Chancellor of KGMU
w.e.f.
14.04.2017.
The
said
anxiety
compels the Court to go into the detail of
the petitioner as to why he has filed this
writ petition in the year 2019, what is his
status, what are the source of information
of the petitioner regarding opposite party
no. 3 and what may be the purpose in
filing this writ petition after more than 15
years from the time when the opposite
party no. 3 was actually holding the post
of Associate Professor and Professor."

9. It has further been observed by the
learned Single Judge that writ in the nature
of certiorari may be invoked by the
aggrieved person but such relief may not be
granted in the garb of writ of quo-warranto
by a busybody. A writ of quo-warranto may
not be substitute of writ of certiorari. It is
trite law that the writ of quo-warranto may
be refused where it is an outcome of malice
or ill-will and it has been held by the writ
Court in para 11 that writ petition has been
filed by one busy body who is having no
public interest except for personal gain or
private profit either of himself or as a proxy
of others for any extraneous motivation or
for glare of publicity.

10. With regard to the objection
raised by the respondents that post of
Associate Professor and Professor would
not qualify as "public office"; inasmuch as
these
posts
must
be
created
by
Constitution,
Legislature
or
authority
conferred by the Legislature. Further,
portion of sovereign power of Government
must be delegated to such position and
therefore on the touchstone aforesaid
office
of
Associate
Professor
and
Professor could not be said to be "public
office" for which a writ of quo-warranto
may be issued.
1 All. Kundan Singh Vs. State of U.P. & Ors.
1713

11. For the aforesaid reasons the
learned Single Judge dismissed the writ
petition against which present special
appeal
has
been
preferred
by
the
petitioner.

12. Sri Amit Bose, learned Senior
Advocate has submitted that he had cited
various judgment before the writ Court
which have not been duly considered on
the aspect that posts of Associate Professor
and Professor would qualify to be "public
office" and for which writ of quo-warranto
can be issued by the writ Court.

13. It was also submitted by Sri Amit
Bose that respondent no. 3 is discharging
the functions of the post of Professor,
inasmuch as he is taking classes in the
University and the issue raised by the
petitioner by means of the present writ
petition would not be a purely academic
question and would necessitate a requisite
consideration.

14. With regard to the Bona fide of
the petitioner, it was submitted that any
person
can
maintain
petition
for
questioning the holder of a public office
with
regard
to
his
eligibility
and
qualification for holding the same, and
therefore the petitioner had sufficient
interest in maintaining the writ petition.

15. The special appeal has been
opposed by Sri Manish Mishra, learned
counsel for respondent no. 1, Sri Anil
Kumar Tewari, Senior Advocate assisted
by Sri Abhinav N. Trivedi, learned counsel
for respondent nos. 2 and 4 and Sri
Gyanendra Kumar Srivastava, learned
counsel for respondent no. 5 and have
stated that the judgment and order of
learned Single Judge is just and proper and
does not require any interference.

16. Heard the counsel for the
petitioners as well as the standing counsel.

17. The writ of quo warranto is a judicial
remedy by which a person who holds
independent substantial public office of franchise
as may be duly determined, and that in case the
finding is that the holder of the office has no right
or title, he would be ousted from the office by the
judicial order. In other words the procedure of
quo warranto gives the judiciary the authority to
proceed against any bid to control the exhibitor
from making appointments to public office
against law and to protect a citizen for being
deprived of public office to which he has a right.
These proceedings also tend to protect public
office from the usurpers of public office, he
might be allowed to continue either with the
connivance of the executive or by reasons of its
apathy. It is thus be seen that before a person can
effectively maintain a writ of quo warranto to
satisfy the court that the office in question is a
public office and is held by the usurper without
legal authority and that inevitably would lead to
the enquiry as to whether the appointment of
alleged usurper has been made in accordance
with law or not. For issuance of a writ of quo
warranto, the Court should be satisfied that the
appointment is contrary to the statutory rules, and
the person holding the post has no right to hold it.

18. In order to examine the
contention of the counsel for the appellant,
whether the posts of Assistant Professor
and Professor are "public office', it would
be beneficial to refer to the various
pronouncements of the Supreme Court.

19. The Hon'ble Apex Court in
Bharati Reddy v. State of Karnataka,
(2018) 6 SCC 162, has held as under :

"38. In Rajesh Awasthi v. Nand
Lal Jaiswal [Rajesh Awasthi v. Nand Lal
Jaiswal, (2013) 1 SCC 501 : (2013) 1 SCC
1714 INDIAN LAW REPORTS ALLAHABAD SERIES
(Cri) 521 : (2013) 1 SCC (L&S) 192] , the
Court noted that a writ of quo warranto
will lie when the appointment is made
contrary to the statutory provisions as held
in Mor Modern Coop. Transport Society
Ltd. [Mor Modern Coop. Transport
Society Ltd. v. State of Haryana, (2002) 6
SCC 269] Further, relying on the
decisions in B. Srinivasa Reddy v.
Karnataka Urban Water Supply and
Drainage Board Employees' Assn. [B.
Srinivasa Reddy v. Karnataka Urban
Water
Supply
and
Drainage
Board
Employees' Assn., (2006) 11 SCC 731 (2) :
(2007) 1 SCC (L&S) 548 (2)] and Hari
Bansh Lal v. Sahodar Prasad Mahto [Hari
Bansh Lal v. Sahodar Prasad Mahto,
(2010) 9 SCC 655 : (2010) 2 SCC (L&S)
771] , wherein the legal position has been
restated that the jurisdiction of the High
Court to issue a writ of quo warranto is a
limited one which can only be issued if the
appointment is contrary to the statutory
rules and the Court has to satisfy itself
that the appointment is contrary to the
statutory rules. In that case, the Court
after analysing the factual matrix found,
as of fact, that there was non-compliance
with sub-section (5) of Section 85 of the
Electricity Act, 2003, in the matter of
appointment of the incumbent to the post
of Chairperson of the Commission for
which it became necessary to issue a writ
of quo warranto. In the supplementing
judgment by one of us Dipak Misra, J. (as
his Lordship then was), the settled legal
position expounded in B.R. Kapur [B.R.
Kapur v. State of T.N., (2001) 7 SCC 231]
, University of Mysore [University of
Mysore v. C.D. Govinda Rao, AIR 1965
SC 491 : (1964) 4 SCR 575] , High Court
of Gujarat [High Court of Gujarat v.
Gujarat Kishan
Mazdoor
Panchayat,
(2003) 4 SCC 712 : 2003 SCC (L&S) 565]
, Centre for PIL v. Union of India [Centre
for PIL v. Union of India, (2011) 4 SCC 1
: (2011) 1 SCC (L&S) 609] has been
recapitulated in paras 29 to 33 of the
reported decision."

20. The Supreme Court in Bharati
Reddy (supra) has observed as under :

"39. We have adverted to some
of those decisions in the earlier part of this
judgment. Suffice, it to observe that unless
the Court is satisfied that the incumbent
was not eligible at all as per the statutory
provisions for being appointed or elected
to the public office or that he/she has
incurred disqualification to continue in the
said office, which satisfaction should be
founded on the indisputable facts, the High
Court ought not to entertain the prayer for
issuance of a writ of quo warranto.

The learned senior advocate
appearing on behalf of the appellant had
drawn the attention this court to the
judgement passed by the Bombay High
Court in the case of Dr D.K.Belsare vs
Nagpur University where the division
bench was examining the appointment of
the respondent to the post of Professor of
zoology in the writ of quo warranto. The
Division Bench relying on the judgement
in the case of Dr P.S.Venkataswamy vs
University of Mysore affirm that in India
we have a republican Constitution. Hence
in India the nature of office in respect of
which quo warranto would like must be
taken to be an office created by the
Constitution itself or by any statute and
invested the power of charged with duty of
acting in execution or in the enforcement
of the law. The court subsequently
considered the provisions of the Mysore
University act and the list of statutory
authorities
prescribed
therein
and
concluded that it cannot be held that the
post of Professor of zoology is a public
1 All. Kundan Singh Vs. State of U.P. & Ors.
1715
office and, therefore, a writ of quo
warranto cannot be issued."

21. In the case of B. Srinivasa
Reddy v. Karnataka Urban Water
Supply & Drainage Board Employees'
Assn., (2006) 11 SCC 731 (2) the Hon'ble
Apex Court, in this regard observed as
under :-

"76. The notification dated 31-12004 clearly states that the appointment is
on contract basis and until further orders.
While
laying
down
the
terms
of
appointment in its order dated 21-4-2004,
the Government of Karnataka clearly
stated that the "term of contractual
appointment of Shri B. Srinivasa Reddy
shall commence on 1-2-2004 and will be
in force until further orders of the
Government and this is a temporary
appointment". Section 6(1) of the Act
categorically states that the Managing
Director shall hold office during the
pleasure of the Government. The power
and functions of the Board are laid down
in Chapter V of the Act. A reading of the
Act clearly shows that neither the Board
nor its Managing Director is entrusted
with any sovereign function. Black's Law
Dictionary defines public office as under:

"Public
office.--Essential
characteristics of ''public office' are (1)
authority conferred by law, (2) fixed
tenure of office, and (3) power to exercise
some portion of sovereign functions of
Government; key element of such test is
that ''officer' is carrying out sovereign
function. Spring v. Constantino [ 168
Conn 563, 362 A 2d 871, 875] . Essential
elements to establish public position as
''public office' are: position must be
created by Constitution, legislature or
through authority conferred by legislature,
portion of sovereign power of Government
must be delegated to position, duties and
powers must be defined, directly or
impliedly, by legislature or through
legislative authority, duties must be
performed independently without control
or superior power other than law, and
position must have some permanency and
continuity. State v. Taylor [ 260 Iowa 634,
144 NW 2d 289, 292] ."

77.
Carrying
out
sovereign
function by the Board and delegation of a
portion of sovereign power of the
Government to the Managing Director of
the Board and some permanency and
continuity
in
the
appointment
are
quintessential features of public office.
Every one of these ingredients are absent
in the appointment of the appellant as
Managing Director of the Board. This
aspect of the matter was completely lost
sight of by the High Court."

22.

Considering
the
judicial
pronouncements with regard to "Public
Office" which would, fall under the
scrutiny of the Court's while exercising the
discretionary power of issue a writ of quo
warranto would be the offices created by
the Constitution or any statute and such
offices should have a fixed tenure apart
from being conferred some portion of the
sovereign power of the Government.

23. On the touchstone of the aforesaid
principles the post of Professor in the KGMU
deserves to be examined. A perusal of the
King George Medical University Act, 2002,
Chapter III provides for the officers of the
University which are as follows:-

"CHAPTER-III

Officers
of
the
University
Officers of the University

14- The following shall be the
officers of the University:-
1716 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) the Chancellor;

(b) the Vice-Chancellor;

[(c)
the
Pro-ViceChancellor;]12

(d) the Finance Officer;

(e) the Registrar;

(f)
the
Controller
of
examination, if any;

(g) the Deans of the Faculties;

(h) the Dean of the Students Welfare;

(i) such other officers as may be
declared by the Statutes to be the Officers
of the University."

24. Needless to say that the post of
Professor is missing from the officers of the
University. Professors of the University
clearly do not exercise any Government
functions nor are vested with the power or
charged with the duty of acting in execution
of enforcement of the law. They are merely
employees under a statutory body, and
therefore, cannot in any sense be described
as public offices in respect of which a writ of
quo warranto would lie.

25. Sri Amit Bose, learned Senior
Advocate vehemently tried to persuade us
by citing certain pronouncements of
learned Single Judge's of other High
Courts, but we do not agree with the said
decisions, and even otherwise would not
have any persuasive value.

26. The 2nd contention raised by the
counsel for the appellant was that
respondent no. 3 was also working on the
post of Professor and therefore a writ of
quo warranto would be maintainable,
despite the fact that presently he has been
appointed as Vice Chancellor and is
discharging his duties as such.

27. The paragraph 24 of the
impugned judgment dated 16/08/2019,
deals with the contention which has been
raised by the counsel for the appellant, and
the learned Single Judge has recorded the
following :-

"...it is an admitted fact by the
petitioner himself that the opposite party
number 3 is presently not occupying the
post of associate professor of Professor."

28. It has been has submitted on
behalf of the appellant that he has filed
certain documents which indicate that the
respondent no. 3 continued as a professor
of
the
University
even
after
his
appointment as Vice Chancellor and the
said finding was erroneous.

29. With regard to the aforesaid
contentions we are of the view that once
an admission has been made by the
petitioner himself before the Writ Court,
which has been duly considered, it is not
open for them to challenge the said finding
in the intra-Court appeal. We also perused
the averments made by the appellant in the
writ petition, and no such pleading was
made before the learned Single Judge with
regard
to
the
continuance
of
the
respondent no. 3 on the post of Professor
as well, and therefore, while exercising the
limited jurisdiction in an intra-Court
appeal the admission made by the
petitioner before the writ court cannot be
interfered with, at his instance that the
same was erroneously recorded.

30. The writ petition preferred by the
petitioner-appellant, was also liable to be
rejected on the grounds of bona fide of the
petitioner. An identical writ was filed
earlier bearing Writ Petition No. 16635
(S/S) of 2019, by one Professor Ashish
Waklu which was dismissed as not pressed
with liberty to file fresh petition. The said
1 All. Kundan Singh Vs. State of U.P. & Ors.
1717
petitioner chose not to exercise the liberty
granted by the Court, but the appellant
herein file a writ petition which is almost
verbatim of the same filed earlier. The
aforesaid facts apart from the fact that the
respondent no. 3 is occupying the post of
Vice Chancellor, which is not under
challenge, but his appointment to the post
of Associate Professor and Professor are
under challenge which were held by him
in 2003 and 2004, raises enough suspicion
in absence of any fact that the writ petition
was motivated and appears to be a proxy
petition for extraneous considerations.

31. No other point was argued by the
Appellant.

32. Considering the entire factual
matrix, the judgment of the learned Single
Judge, and the arguments raised by the
counsel
for
the
appellant
and
the
respondents, we do not find any infirmity
or illegality in with the impugned
judgment of the learned Single Judge.

33. For the reasons stated herein
above the special appeal lacks merit and is
hereby dismissed.
----------
(2020)1ILR 1716

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE BHARATI SAPRU, J.
THE HON'BLE SAURABH SHYAM SHAMSHERY, J.

Special Appeal No. 538 of 2018

Brij Raj Krishan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sri Sanjay Kumar Singh,
Sri Bhuwan Raj, Sri Ravi Prakash

Counsel for the Respondents:
C.S.C., Sri Avanish Tripathi, Sri M.N. Singh

A. Service - Appointment/Recruitment -
Eligibility criteria - U.P. Transport Subordinate
Technical (Fourth Amendment) Service Rules,
2014 - Part time training of the appellant
cannot be covered and considered in the
category of 'Working Experience' in terms of
advertisement issued for the post of Regional
Inspector (Tech.). (Para 27)

Certificates of requisite qualification submitted
by the appellant were issued after the last date
of
submission
of
application.
Moreover,
appellant had undertaken training on part time
basis, which could not be treated at par to the
candidates who had undertaken full time
training
especially
when
there
was
a
Government Order as well as the decision of
the Commission stating that the part time
working and work without remuneration would
not be treated as an experience under the
relevant Rules. (Para 23, 24)

Appeal dismissed. (E-4)

Present appeal is against judgment and
order
dated
07.05.2018,
passed
by
learned Single Judge in Writ-A No. 10164
of 2018.

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Shri. S.K. Singh, learned
counsel for the appellant, Shri. Avanish
Tripathi and learned Standing Counsel for
respondents.

2. The present special appeal is
preferred against the judgment and order
dated 07.5.2018 passed by the learned
Single Judge in Writ-A No.10164 of 2018,
whereby the said writ petition filed by the
petitioner-appellant has been dismissed.