# Ravi Kant Tiwari v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1882
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-03
- **Case number:** Service Single No. 36210 of 2019
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-kant-tiwari-v-state-of-u-p-ors-45677
- **Pages:** 11

## Headnote

I.P. Singh, Gyendra Kumar Srivastava, Kshitij
Misra

A. Service - Usurpation of 'Public Office' -
Sanjay Gandhi Post-Graduate Institute of
Medical Sciences, First Regulation, 2011
- Maintainability of writ of quo-warranto
would depend on whether office in
question is a 'Public Office' and the
person is holding it without any legal
authority.

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
1884 INDIAN LAW REPORTS ALLAHABAD SERIES
sovereign functions of the Government either
executive, legislative or judicial, 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. (Para 12)

There is a distinction between Public Office,
Public Authority and Public Duty. A Chief
Medical Superintendent of SGPGIMS can be
said to be discharging a Public Duty but that
ipso facto would not make the post of Chief
Medical Superintendent a 'Public Office'. (Para
7)

B. 'Sovereign function' - For a particular
function to be a 'sovereign function' it would
depend on the nature of the power and the
manner in which it is exercised. 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. (Para 13 & 14)

As per the determining test, the office in
question cannot be held to a 'Public Office'.
(Para 16)

Writ Petition dismissed. (E-4)

Precedent followed: -

## Text

1 All. Avanindra Dikshit Vs. State of U.P. & Anr.
1883
the State Exchequer. Further, there is no
allegation against the petitioner to the effect that
while applying the government orders which as
per the State-respondent are not applicable in the
issue in question, the petitioner was having any
ulterior motive or malafide intention, therefore, at
the best the petitioner could have been asked as to
how he has applied wrong government orders
and after considering the reply of the petitioner
appropriate decision may be taken strictly in
accordance with law during the course of the
departmental inquiry but for this allegation, I
think the major punishment may not be awarded
to the petitioner subject to the findings of enquiry
officer. It is clarified here that this observation
shall not affect the departmental proceedings in
any manner whatsoever and the inquiry officer
shall not only conduct and conclude the
departmental inquiry strictly in accordance with
law while affording opportunity of hearing to the
petitioner but shall not be influenced from any
finding being given herein above. However, on
the material available on records and the
arguments so advanced by the learned counsel
for the parties, I am of the considered opinion that
in view of dictum of Hon'ble Apex Court in re:
Ashok Kumar Aggarwal (supra) the impugned
suspension order is not sustainable in the eyes of
law and prima facie appears to be violative of
Rule 4 of the Rules of 1999 besides being
unwarranted and uncalled for in view of the facts
and circumstances of the issue in question.

17. Accordingly, the suspension
order dated 10.12.2019 passed by the
Additional Chief Secretary, Department of
Finance (Lekha Parikchha), Anubhag-1,
Civil Secretariat, Lucknow which is
contained as Annexure no. 1 to the writ
petition, is hereby quashed.

18. A writ in the nature of
mandamus is issued commanding the
opposite parties to reinstate the petitioner
and pay him salary and other emoluments
regularly with promptness, preferably
within a period of 15 days from the date of
production of certified copy of the order of
this Court.

19. It is made clear that the
departmental inquiry against the petitioner
may be conducted and concluded, if it is so
warranted but strictly in accordance with law.

20. In the result the writ petition
succeeds and accordingly Allowed.

21. No order as to costs.
----------
(2020)1ILR 1882

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.01.2020

BEFORE
THE HON'BLE ABDUL MOIN, J.

Service Single No. 36210 of 2019

Ravi Kant Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kaushlendra Tewari

Counsel for the Respondents:
I.P. Singh, Gyendra Kumar Srivastava, Kshitij
Misra

A. Service - Usurpation of 'Public Office' -
Sanjay Gandhi Post-Graduate Institute of
Medical Sciences, First Regulation, 2011
- Maintainability of writ of quo-warranto
would depend on whether office in
question is a 'Public Office' and the
person is holding it without any legal
authority.

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
1884 INDIAN LAW REPORTS ALLAHABAD SERIES
sovereign functions of the Government either
executive, legislative or judicial, 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. (Para 12)

There is a distinction between Public Office,
Public Authority and Public Duty. A Chief
Medical Superintendent of SGPGIMS can be
said to be discharging a Public Duty but that
ipso facto would not make the post of Chief
Medical Superintendent a 'Public Office'. (Para
7)

B. 'Sovereign function' - For a particular
function to be a 'sovereign function' it would
depend on the nature of the power and the
manner in which it is exercised. 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. (Para 13 & 14)

As per the determining test, the office in
question cannot be held to a 'Public Office'.
(Para 16)

Writ Petition dismissed. (E-4)

Precedent followed: -

1. Dr. Neetu Singh Vs State of U.P. and others,
WP No. 24229 (MB) of 2019 decided on
05.09.2019 (Para 5 & 6)

2. Shashi Bhushan Ray Vs. Pramatha Nath
Bandopadhyay, (1966) SCC Online Cal. 153 (Para 8)

3. Agriculture Produce Market Committee Vs.
Ashok Hariauni and another, (2000) 8 SCC 61
(Para 13 & 14)

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri I.P. Singh, Senior
Advocate, assisted by Sri Kaushlendra
Tewari, learned counsel for the petitioner,
learned Standing Counsel for Staterespondents, Sri Sanjay Bhasin, Senior
Advocate, assisted by Sri Kshitij Misra,
learned counsel appearing for respondent
no. 2 and Sri Gyanendra Srivastava,
learned counsel appearing for respondent
no.4.

2. Present petition has been filed by
the petitioner praying for a writ in the
nature of quo-warranto thereby ousting
respondent no.3-Amit Agarwal from the
post of Chief Medical Superintendent,
Sanjay Gandhi Post-Graduate Institute of
Medical
Sciences,
Raebareli
Road,
Lucknow.

3. The writ petition has been filed
with the allegation that respondent no.3
has usurped the "Public Office" of Chief
Medical
Superintendent
and
is
not
qualified to hold the said post.

4. Sri Sanjay Bhasin, learned Senior
Advocate,
has
raised
a
preliminary
objection regarding maintainability of the
writ petition by placing reliance on the
Sanjay Gandhi Post-Graduate Institute of
Medical Sciences, First Regulation, 2011
(hereinafter referred to as the '2011
Regulations') to contend that the post of
Chief Medical Superintendent in Sanjay
Gandhi Post-Graduate Institute of Medical
Sciences (hereinafter referred to as the
'SGPGIMS') is not a 'Public Office'. It has
been further argued 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.

5. The entire aspect of the matter
pertaining to what is a 'Public Office' has
been considered by a Division Bench of
this Court in the case of Dr. Neetu Singh
vs. State of U.P. and others passed in
1 All. Ravi Kant Tiwari Vs. State of U.P. & Ors.
1885
Writ Petition No.24229 (MB) of 2019
decided
on
05.09.2019
wherein
considering almost the entire law on the
subject, the Division Bench has held as
under:-

"8.1 In case of Dr P.S.Venkata
Swamy Setty Vs University of Mysore-
(AIR 1964 Mysore 159; Para 11,13,14) it
has been held that the Professors and
Readers of a University do not exercise
any governmental function nor they are
vested with the power or charged with the
duty of acting in execution or enforcement
of law. They are merely employees of the
Statutory Body. They cannot therefore in
any sense be described as holders of
Public Offices in respect of which a Writ
of Quo-warranto would lie.

8.2 In Dr P.S.Venkata Swamy
Setty (Supra), the University of Mysore
though its Registrar, vide Notification
dated 25th June,1959 invited Applications
for various posts of Professors 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 :-
1886 INDIAN LAW REPORTS ALLAHABAD SERIES

"After consideration of all the
cases and dicta on this subject, the result
appears to be that this proceeding by
information in nature of quo warranto will
lie for usurping any office, whether
created by charter alone , or by the
Crown, with the consent of Parliament,
provided the office be of a public nature,
and a substantive office, not merely the
function or employment of a deputy or
servant held at the will and pleasure of
others".

PARA 13

In India we have a republican
Constitution. Hence in India the nature of
Office in respect of which quo warranto
will lie must be taken to be an office
created by the Constitution itself or by any
statute and invested with the power or
charged with the duty of acting in
execution or in enforcement of the law. We
might add that the office may be either an
elective office or one in respect of which a
nomination or appointment is made by a
specified authority and that in the case of
elective office, we generally have the
procedure of election petitions which
makes it unnecessary for any one to
proceed by way of a writ of quo warranto.

Provided the office is of the
character or nature described above, it is
well established in England that the
Petitioner who is only a relator need not
have any personal interest in the matter.
All that is necessary is that he should act
bona-fide in public interest and should not
be a mere man of straw acting at the
instance of others or on ulterior motives.
The writ, as already stated, is purely
discretionary with the Court and will not
issue unless the Court is satisfied that it is
necessary to issue the writ in public
interest.

PARA 14

The principles stated in the case
of 1916, 1 KB 595 have been applied in
India also. The only case where it was
held that even in the case of quo warranto
the petitioner must have a personal
interest before he could move the Court is
the decision of a single Judge Chandra
Reddi,J. as he then was, of the Madras
High Court reported in re ,Chakkaral
Chettiar , AIR 1953 Mad 96. His Lordship
purported to follow the decision of a
Bench of that High Court reported at Page
94 of the same Volume. That Bench
decision, however, related to a case of
certiorari.The opinion of Chandra Reddi
,J.,was dissented from by a subsequent
Bench ruling of the Madras High Court in
Sivarama Krishnan v.Arumugha Mudliar,
(S) AIR 1957 Mad 17. It is pointed out in
that case that no other High Court in India
has accepted Justice Chandra Reddi's
view, Among the rulings of other High
Courts expressing such dissent are Biman
Chandra V. Governor, West Bengal, AIR
1952 Cal 799 and V.D.Deshpande v. State
of Hyderabad(S) AIR 1955 Hyderabad 36.
In the latter decision other cases, both
English and Indian, and found discussed
and the principles formulated."

8.3 Similar observation have
been made in the case of Dr D.K. Belsare
Vs Nagpur University; (1980) 82 Bom LR
494, Para 60,61,64,66.

8.4 In Dr D.K. Belsare (supra)
the Petitioner before the Bombay High
Court filed a Writ of Quo-warranto
against the incumbent appointed as
Professor of Zoology. The Writ Petition
was filed on the ground that: (a) the
appointment is Malicious; (b) Selection
Committee has not been constituted in
terms
of
the
provisions;
and
(c)
Appointment of Respondent No.3 was
illegal. After considering the provisions of
the Act and the Statutes of the University
1 All. Ravi Kant Tiwari Vs. State of U.P. & Ors.
1887
and legal prepositions, the Bombay High
Court held as under :

"PARA 60

We have presently pointed out
earlier that in this case this submission
about collateral attack is not at all
maintainable. The next ruling is Alex Beets
v. M.A Urmese. In this ruling, a writ for
quo warranto was asked for by a medical
graduate against an Hon.Medical Officer
with certain other reliefs. It was contended
that the Government has bound to observe
the
provisions
of
Art,
16
of
the
Constitution of India and to advertise
invitations for applications thereof , which
was not done in that case. It was held that
in the absence of such a case in the
Petition, this could not be urged at the
final hearing. Consequently, it was held
that a challenge under Art.16 cannot be
urged by one who was not an aspirant to
the post. It was further held that challenge
under art.16 cannot be heard in a motion
cannot be heard in a motion for quo
warranto and breach of art.16 can be
challenged in a writ of certiorari only and
it was further held by the Kerala High
Court that possession of a Public Office
under a Government Order is not
usurpation of Office, for which alone quowarranto 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
1888 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the section, which was
required to be made in accordance with
law. In result, therefore, it will be seen
that it cannot be held that the post of
Professor of Zoology is a public office
and, therefore, a writ of quo warranto
cannot be issued. The result is that there is
no merit in this petition and it deserves to
be dismissed and is accordingly dismissed.
Rule
is
discharged,
but
in
the
circumstances of this case, there will be no
Order as to costs."

8.5 In the case of University of
Mysore Vs Govinda Rao AIR 1965 SC
491; Para 6, the Hon'ble Apex Court has
held that the Quo-warranto proceeding
affords a judicial enquiry in which any
person holding an independent substantive
public office, or franchise, or liberty, is
called upon to show by what right he holds
the said office, franchise or liberty. If the
enquiry leads to the finding that the holder
of the Office has no valid title to it, the
issue of the writ of Quo-warranto ousts
him from that Office.

8.6 In Govinda Rao (Supra) the
Mysore High Court allowed the Writ
Petition and consequently issued a Writ of
Quo-warranto
against
the
Research
Reader in English in Central College,
Bangalore,
being
aggrieved
thereof
Special Leave Petitions were filed which
were converted into Civil Appeal No.417
and 418 of 1963. Allowing the Civil
Appeals, the Hon'ble Supreme Court held
as under:

PARA 6

"The Judgment of the High
Court does not indicate that the attention
of the High Court was drawn to the
technical nature of the writ of 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
1 All. Ravi Kant Tiwari Vs. State of U.P. & Ors.
1889
the office in question is a public office and
is held by usurper without legal authority,
and that necessarily leads to the enquiry
as to whether the appointment of the said
alleged usurper has been made in
accordance with law or not."

8.7 In the case of B. Srinivasa
Reddy VS Karnataka Urban Water
Supply and Drainage Board Employees
Association reported in (2006) 11 SCC
731 II Para 76; the judgment of Learned
Single Judge directing for the ouster of
Managing Director, Karnataka Urban
Water Supply was affirmed by the Division
Bench of High Court of Karnataka in Writ
Appeal No.86 of 2006. The matter went up
to the Hon'ble Supreme Court and after
considering the definition of ''Public
Office'
as
defined
in Black's
Law
Dictionary, the Hon'ble Apex Court has
held that certain essential elements are to
be established in order to hold an Office /
Post as ''Public Office'.

8.8
The
aforesaid
essential
elements can be summarized as under:-

a) Position must be created by
constitution,
legislature
or
authority
conferred by legislature.

b) Portion of sovereign power of
government must be delegated to such
position.

c) Duties and powers must be
defined directly or impliedly.

d) Duties must be performed
independently without control or superior
power other than law.

e) Position must have some
permanency and continuity.

8.9 The Hon'ble Apex Court in
Srinivasa Reddy (Supra) observed that the
Appeals involve substantial questions of
law regarding interpretation of certain
provisions of Karnataka Urban Water
Supply and Drainage Board Act, 1973 and
the Rules made there under and also the
principles of law governing the writ of
quo warranto.

Consequently the Hon'ble Apex
Court has held as under:

"PARA 76

"The
Notification
dated
31.01.2004
clearly
stated
that
the
appointment is on contract basis and until
further orders. While laying down the
terms of appointment in its order dated
21.04.2004, the Government of Karnataka
clearly stated that the "term of contractual
appointment of Shri B.Srinivasa Reddy
shall commence on 01.02.2004 and will be
in force until further orders of the
Government and this is a temporary
appointment". Section 6(1) of the Act
categorically states that the Managing
Director shall hold Office during the
pleasure of the Government. The power
and functions of the Board are laid down
in Chapter V of the Act. A reading of the
Act clearly shows that neither the Board
nor its Managing Director is entrusted
with any sovereign function. Black's Law
Dictionary defines public office as under:"

"Public
Office-
Essential
characteristics of ''public office' and
(1)authority conferred by law, (2) fixed
tenure of Office, and (3) power to exercise
some portion of sovereign functions of
Government; key element of such test is
that ''Officer' is carrying out sovereign
function, Spring v. Constantino. Essential
elements to establish public position as
''public office' are: position must be
created by Constitution , legislature or
through authority conferred by legislature,
portion of sovereign power of Government
must be delegated to position, duties and
powers must be defined, directly or
impliedly, by legislature or through
legislative authority, duties must be
performed independently without control
or power other than law and position must
1890 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

6. When the facts of the instant case
are tested on the touchstone of law laid
down by this Court in the case of Dr.
Neetu Singh (supra), the basic question
would be as to whether the holder of the
post of Chief Medical Superintendent
would be considered to be holder of a
'Public Office' and whether the post of
Chief Medical Superintendent qualifies the
essential characteristics of 'Public Office'
as illustrated in the aforesaid Division
Bench judgment.

7. There is a distinction between
Public Office, Public Authority and Public
Duty. A Chief Medical Superintendent of
SGPGIMS can be said to be discharging a
Public Duty but that ipso facto would not
make that the post of Chief Medical
Superintendent as a 'Public Office' for the
purpose of maintaining a writ of quowarranto.

8. 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.

9. ''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.

10. A ''Public Office' is the right,
authority and duty created and conferred
by law, by which an individual is vested
with some portion of the sovereign
functions of the government to be
exercised by him for the benefit of the
public, for the term and by the tenure
prescribed by law. It implies a delegation
of a portion of the sovereign power. It is a
trust conferred by public authority for a
public purpose, embracing the ideas of
tenure, duration, emoluments and duties.
The determining factor, the test, is whether
the Office involves a delegation of some
of the solemn functions of government,
1 All. Ravi Kant Tiwari Vs. State of U.P. & Ors.
1891
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".

11. 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."

12. 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.

13. Hon'ble Supreme Court in the
case of ''Agriculture Produce Market
Committee VS Ashok Hariauni and
another' reported in (2000) 8 SCC 61, in
Paragraph 21, has held as under:

Para 21:

"In other words, it all depends
on the nature of power and the manner of
its exercise. What is approved to be
''Sovereign' is defence of the Country,
raising armed forces, making peace or
war, foreign affairs, power to acquire and
retain territory. These are not amenable to
the jurisdiction of ordinary Civil Courts.
The other function of the State including
welfare activity of State could not be
construed as ''Sovereign' exercise of
power. Hence every governmental function
1892 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. 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' it would depend
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.

15. 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."

16. From the aforesaid discussion, it
is evident that the post of Chief Medical
Superintendent of SGPGIMS cannot be
held to be a 'Public Office' merely because
the SGPGIMS is in the field of medical
service. The office of Chief Medical
Superintendent does not seem to involve
an obligation of any of the sovereign
functions
of
the
Government
either
1 All. Ravi Kant Tiwari Vs. State of U.P. & Ors.
1893
Executive or Legislative or Judicial for
public benefit. It cannot be said that the
public in general is interested and nonobservance
of
the
obligations
of
employment of respondent no.3 as a Chief
Medical Superintendent, 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 Chief Medical Superintendent a 'Public
Office'.

17. Taking into consideration the
aforesaid
discussion,
the
preliminary
objection as raised by Sri Sanjay Bhasin,
learned Senior Advocate is upheld and the
writ petition is accordingly dismissed.
----------
(2020)1ILR 1892

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-A No. 49709 of 2017
Connected With

Writ-A No. 48501 of 2017
With Writ-A No. 55657 of 2017
With Writ-A No. 5259 of 2018
With Writ-A No. 53240 of 2017

Nitin Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Kailash Singh Kushwaha, Sri
Prabhakar Awasthi

A. Service - Appointment/Recruitment -
U.P.
Subordinate
Service
Selection
Commission Act, 2014: Section 2, 15(2), 17,
18; U.P. Industry Department (Handloom
and
Textile
Industry
Directorate)
Subordinate Service Rules, 1992; Direct
Recruitment (4th Amendment) Rules, 2014:
Rule
5(3)(A);
U.P.
Public
Service
Commission
Rules,
2002;
U.P.
Direct
Recruitment to Group 'C' Posts (Method and
Procedure) Rules, 2015: Rule 8(1); U.P.
Rules of Business, 1975 - The question for
consideration before this Court is that
whether the rules as amended in the year
2014, or Rules of 2015 notified after the
formation of the Commission by the Act of
2014 would be applicable. (Para 24)

Once the Commission was established, it was
bound to follow the rules and regulations so
framed under the act and to do away with the
earlier procedure prescribed under the various
rules and regulations. Selection has to be made
according to the rules applicable at the time of
advertisement and not subsequently, but the
present case is slightly different. The Rules of
2014 were not amended or aid of any other
rules
and
regulations
were
taken
into
consideration, but after the Rules of 2014 were
amended and notified on 29.01.2014, the U.P.
Act No. 20 of 2014 came into force and gazette
notification was made on 04.12.2014, pursuant
to which Rules of 2015 were made which came
into operation. (Para 31)

The Commission after advertisement proceeded
to make selection on basis of interview after
the notification of Rules of 2015 in the month
of June 2015. If the interview was held and
select list was prepared before the date of
notification of Rules of 2015 i.e. 11.05.2015
then Rule 5 (3) (A) of Rules of 2014 would
have been applicable and not Rules of 2015.
(Para 32)

B. Rule 8 (1) of the Rules of 2015 -
Approval of the State Government while
conducting and completing the selection
proceedings - State Government has power
to amend or modify the said rules and any such
amendment or modification is binding on the
Commission.
Therefore,
prior
to
making
selection, Commission was not required to send
for approval to the State Government. (Para
34)