# Sohan Lal Sharma v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 410
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-17
- **Case number:** Writ-A No. 12726 of 2021
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sohan-lal-sharma-v-state-of-u-p-ors-48124
- **Pages:** 5

## Headnote

A. Article 226 - Writ of Quo Warranto - For
issuance of Writ of Quo Warranto it has to be
seen by the court as to whether incumbent is
holding public office or not and further he is
having essential qualifications to hold the said
post or not.

B. Only an aggrieved person can file a writ
petition. In service jurisprudence only
aggrieved person can assail the offending
action. Third party has no locus standi to
canvass the legality or correctness of the
action.

C. The post of Chief Medical Superintendent of
District Hospital is not a public office and,
therefore, writ of quo warranto cannot be
issued.

Petition dismissed. (E-12)

List of Cases cited:-

## Text

410 INDIAN LAW REPORTS ALLAHABAD SERIES
earned by the government servant by dint
of his long, continuous, faithful, and
unblemished service, the same cannot be
curtailed except as per law. Since the
benefit of increment has accrued to the
government
servant
for
the
service
rendered by him during his service period,
therefore, such benefit earned by the
government cannot be denied on the pretext
that the government servant has retired on
the day on which he is entitled to receive
such benefit and it does not form part of
emoluments under Rule 34 for calculating
the pension. The Court believes that the
denial of notional increment on the
aforementioned grounds is nothing but an
abuse of process of law and is an arbitrary
act of the respondents, as such is hit by
Article 14 of the Constitution of India.

49. So far as the judgment of Madhya
Pradesh High Court in Madhav Singh
Tomar (supra) is concerned, the Division
Bench of the Madhya Pradesh High Court
has rejected the claim relying upon the
aforesaid judgment of the Andhra Pradesh
High Court, therefore, the law enshrined in
the said decision is also not applicable in
the facts of the present case. For the same
reason, the judgment of the Himachal
Pradesh High Court which has denied the
claim of petitioners on the ground that
when the increment fell due he was not an
employee, is also not applicable in the facts
of the present case.

50. Now coming to the facts of the
present case, undisputedly the petitioner had
retired on 30.06.2016 and the increment for
the service rendered by him for the past one
year i.e. 01.07.2015 to 30.06.2016 became
due to him on 01.07.2016. The denial of the
increment to the petitioner on the ground that
the last day of the service of the petitioner
was not the last working day and the
petitioner had retired in the afternoon cannot
be sustained given discussions aforesaid; as
from the discussion aforesaid, it is evident
that the last working day of the petitioner is
30.06.2016 till 12:00 P.M. Thus, the
petitioner had completed one full year from
01.07.2015 to 30.06.2016. Consequently, he
cannot be denied the benefit of notional
increment which fell due on 01.07.2016 as
the right to get increment is an accrued right
for the services rendered for one year, and the
next date on the conclusion of the year is only
the date on which he is entitled to receive the
monetary benefit. Thus, for grant of notional
increment, it is immaterial that the petitioner
was not in service on the day when it fell due.
Accordingly, this Court believes that the
order impugned is not sustainable.

51. For the reasons given above, the
impugned order dated 17.01.2020 passed by
respondent
no.6-Executive
Engineer,
Nalkoop Khand-2, Allahabad is hereby
quashed and a writ of mandamus is issued to
the respondent to grant the benefit of one
notional increment to the petitioner and
accordingly, revise and refix his pay and
pension.

52. The writ petition is allowed with no
order as to cost.
----------

(2022)02ILR A410
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 12726 of 2021

Sohan Lal Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
2 All. Sohan Lal Sharma Vs. State of U.P. & Ors.
411
Counsel for the Petitioner:
Sri Abhishek Kumar Jain, Mr. Raghvendra Yadav

Counsel for the Respondents:
C.S.C.

A. Article 226 - Writ of Quo Warranto - For
issuance of Writ of Quo Warranto it has to be
seen by the court as to whether incumbent is
holding public office or not and further he is
having essential qualifications to hold the said
post or not.

B. Only an aggrieved person can file a writ
petition. In service jurisprudence only
aggrieved person can assail the offending
action. Third party has no locus standi to
canvass the legality or correctness of the
action.

C. The post of Chief Medical Superintendent of
District Hospital is not a public office and,
therefore, writ of quo warranto cannot be
issued.

Petition dismissed. (E-12)

List of Cases cited:-

1. Ravi Kant Tiwari Vs St.of U.P. Service Single
No. 36210 of 2019

2. R.K. Jain Vs U.O.I. (1993)4 SCC 119

3. Dr. Prabhu Nath Prasad Gupta Vs St.of U.P. &
ors. 2003(52) ALR 520

4. Shanker Verma Vs St.of U.P. Service Single
No. 14329 of 2019
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Mr. Raghvendra Yadav,
Advocate holding brief of Mr. Aklank
Kumar Jain, learned counsel for the
petitioner and Dr. D.K. Tiwari, learned
Additional Chief Standing Counsel for the
State-respondents.

2. Present petition has been filed with
the following prayers:

"(i) Issue a suitable order or direction
in the nature of certiorari quashing the
impugned order dated 29.9.2020 passed by
the Government of U.P., Chikitsa Anubhag2, Lucknow with regard to the respondent
no.4 whose name is placed at serial No.5 of
the aforesaid impugned order.

(ii) Issue a suitable order or direction
in the nature of quo warranto commanding
the respondents to oust the respondent no.4
from
the
post
of
Chief
Medical
Superintendent, District Hospital, Etah."

3. Learned counsel for the petitioner
submitted that petitioner is Netra Parikshan
Adhikari posted at District Hospital, Etah
from 8.2.2020 and presently working under
the respondent no.4, against whom writ of
quo warranto is sought. He next submitted
that respondent no.4 was working as Senior
Consultant at District Hospital, Etah and he
was
promoted
as
Chief
Medical
Superintendent in the same hospital vide
impugned order dated 29.9.2020. He
further submitted that earlier Chief Medical
Officer, Kanpur Nagar passed an order
dated 7.7.2015 by which respondent no.4
was transferred and relieved from District
Hospital Kanpur Nagar to District Hospital
Etah, but he has not submitted his joining
and ultimately he was unauthorizedly
absent for more than three years from the
service. Further, instead of submitting his
joining, he has challenged the said order by
filing Case No.CP1540 of 2018 (Dr. Rajesh
Kumar Agrawal Vs. Family Welfare)
before
the
State
Services
Tribunal,
Lucknow, which is still pending. Ignoring
his unauthorized absence, in compliance of
order dated 29.9.2020, respondent no.4 was
permitted to join his service as Chief
Medical Superintendent, District Hospital,
Etah. He further submitted that once the
respondent no.4 was unauthorizedly absent
from the service for more than 3 years, he
412 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be permitted to join his service on
the post of Chief Medical Superintendent,
District Hospital, Etah. He also submitted
that post of Chief Medical Superintendent
is Public Office and respondent no.4 cannot
hold the said post illegally as he was absent
from service for more than three years and
also filed a Case No.CP1540 of 2018 (Dr.
Rajesh
Kumar
Agrawal
Vs.
Family
Welfare)
before
the
State
Services
Tribunal, Lucknow. Lastly, he submitted
that under such facts and circumstances of
the case, order is bad in law, writ of
certiorari as well as quo warranto may be
issued for cancelling the promotional order
of respondent no.4 dated 29.9.2020 and
removed him from the post of Chief
Medical Superintendent, District Hospital
Etah.

4. Dr. D.K. Tiwari, learned Additional
Chief Standing Counsel has opposed the
submission of learned counsel for the
petitioner and submitted that present
petition for writ of certiorari as well as quo
warranto is not maintainable for many
reasons. He next submitted that first of all
impugned order dated 29.9.2020 is not a
promotional order, but it is a transfer order
only. He further submitted that in service
matter, writ petition can only be filed by
the person aggrieved, whereas in the
present case, petitioner is not the person
aggrieved. He is admittedly subordinate to
respondent no. 4 in the same hospital and
even in case of quashing of impugned order
dated 29.9.2020, petitioner would not be
entitled to hold the post of Chief Medical
Superintendent at District Hospital, Etah,
therefore, writ petition for writ of certiorari
is not maintainable.

5. In support of his contention, he has
placed reliance upon the judgments of the
Apex Court as well as this Court in the
cases of R.K. Jain Vs. Union of India and
others reported in 1993 (4) SCC 119, Dr.
Prabhu Nath Prasad Gupta vs. State of
U.P. And others reported in 2003 (52) ALR
520 and Sanker Verma vs. State of U.P.
Thru. Prin. Secy. Edu. Lucknow and
others passed in Service Single No. 14329
of 2019 decided on 23.5.2019.

6. Learned Standing Counsel further
submitted that writ of quo warranto may
also not be issued in the present case. For
issuance of writ of quo warranto, it has to
be seen by the Court as to whether
incumbent is holding the Public Office or
not and further he is having essential
qualification to hold the said post or not. So
far as present case is concerned, on both the
grounds, writ of quo warranto may not be
issued.

7. He next submitted that post of
Chief Medical Superintendent, District
Hospital, Etah is not Public Office. The
very same matter came before this Court in
the case of Ravi Kant Tiwari vs. State of
U.P. Thru. Sanjay Gandhi Pg. Institute and
others passed in Service Single No. 36210
of 2019 and this Court after considering so
many judgments, held that post of Chief
Medical Superintendent is not a Public
Office.

8. So far as qualification is concerned,
there is no dispute on the point that
respondent no.4 is fully qualified to hold
the said post, therefore, mere his absence
for more than three years from service,
filing of a case and ultimately permitted by
the employer of State Government to join
his service cannot be a ground for issuance
of writ of quo warranto.

9. I have considered the rival
submissions advanced by the learned
2 All. Sohan Lal Sharma Vs. State of U.P. & Ors.
413
counsel for the parties and perused the
record as well as judgment relied by the
leaned Standing Counsel for the Staterespondents. There is no dispute on the
issue that in service matter, writ petition
can only be filed by the person aggrieved.
Undisputedly, petitioner is not aggrieved
by the order of Government of U.P.
Chikitsa
Anubhag-2
Lucknow
dated
29.9.2020 by which respondent no.4 was
transferred and posted as Chief Medical
Superintendent, District Hospital Etah as he
is not prospective incumbent for the same
post.

10. In the matter of R.K. Jain
(Supra), Court has held that in service
jurisprudence, only aggrieved person can
assail the illegality of offending action.
Paragraph 74 of the said judgment is
quoted hereinbelow:-

"74. Shri Harish Chander, admittedly
was the Senior Vice-President at the
relevant time. The contention of Shri
Thakur of the need to evaluate the
comparative merits of Mr. Harish Chander
and Mr. Kalyansundaram a seniormost
member for appointment as President
would not be gone into a public interest
litigation. Only in a proceedings initiated
by an aggrieved person it may be open to
be considered. This writ petition is also not
a writ of quo warranto. In service
jurisprudence, it is settled law that it is for
the the aggrieved person i.e. non-appointee
to assail the legality of the offending
action. Third party has no locus standi to
canvass the legality or correctness of the
action. Only public law declaration would
be made at the behest of the petitioner, a
public spirited person."

11. Again in the matter of Dr. Prabhu
Nath Prasad Gupta (Supra), this Court
after considering so many judgments, has
taken similar view that only person
aggrieved can only be filed writ petition.

12. The similar issue was again came
before this Court in the matters of Sanker
Verma (Supra), Court after considering
judgments of Apex Court, has held that in
service matter, only person aggrieved can
file writ petition. Paragraph 8 of the said
judgment is quoted hereinbelow:-

"8. From a perusal of the law laid
down by the Apex Court in the case of Ravi
Yashwant Bhoir (supra) as well as the
Division Bench judgment in the case of
Dharam Raj (supra) it clearly comes out
that for a person to prefer the petition, he
has to establish that he has been deprived
of or denied of a legal right and he has
sustained injury to any legally protected
interest. Thus in order to prefer a writ, the
person entitled would be one who has
either been wrongly deprived of his
entitlement which he is legally entitled to
receive and it does not include any kind of
disappointment or personal inconvenience.
It is settled proposition of law that the
person who suffers from legal injury only
can challenge the act or action or order by
filing a writ petition inasmuch as the writ
petition under Article 226 of Constitution
of India is maintainable for enforcing a
statutory or legal right or when there is a
complaint by the petitioner that there is
breach of statutory duty on the part of
authorities. Thus, there must be a judicially
enforceable right for the enforcement of
which the writ jurisdiction can be resorted
to and not for the purpose of settlement of a
personal grievance."

13. In the present case too, there is no
doubt on the point that petitioner is not
aggrieved by the impugned order dated
414 INDIAN LAW REPORTS ALLAHABAD SERIES
29.9.2020, which is necessary requirement
in service matter for filing a writ petition,
therefore, in light of facts as well as judicial
pronouncement made by Courts, this
petition is not maintainable and no writ of
certiorari can be issued for quashing the
impugned order dated 29.9.2020.

14. Coming to the second point as to
whether writ of quo warranto against the
respondent no.4 can be issued or not. The very
same issue came before this Court in the case
of Ravi Kant Tiwari (supra) and Court after
considering so many judgments, has held that
post of Chief Medical Superintendent is not a
Public Office. Paragraph 16 of the said
judgment is quoted hereinbelow:-

"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 Executive or Legislative or Judicial for
public benefit. It cannot be said that the public
in general is interested and non-observance 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'."

15. In light of judgment of this Court in
the matter of Ravi Kant Tiwari (Supra) as
well as facts of the case, once the post of Chief
Medical Superintendent is not Public Office,
no writ of quo warranto can be issued.

16. Now coming to the second point as
to whether respondent no.4 is having
eligibility to hold the said post or not, which is
a core issue for issuance of writ of quo
warranto. Undisputedly, respondent no.4 is
qualified Doctor, duly appointed by the
respondents in the State Medical Services
having all qualification for holding the post of
Chief Medical Superintendent. Therefore,
mere absence from service for certain time,
cannot be a ground for issuance of writ quo
warranto. The State Government is the
employer of respondent no.4 and employer
has always right to condone/waive off the
certain deficiencies, if found. In the present
case, assuming it respondent no.4 has not
joined his service for certain time, it can only
be an irregularity and not illegality for which
State Government has full right to condone the
same. It is also undisputed that respondent
no.4 was earlier posted as Senior Consultant
District Hospital, Etah and he was very well in
service. Therefore, his transfer/adjustment
from one post to another post in same hospital
cannot said to be illegality and mere his
absence from the service for certain period
would
not
attach
any
ineligibility
or
disqualification to respondent no.4 to hold the
post resulting into issuance of writ of quo
warranto.

17. Therefore, under such facts of the
case and law laid down by Courts, I found no
substance, writ petition lacks merit and is
accordingly, dismissed. No order as to costs.
----------
(2022)02ILR A414
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-A No. 15480 of 2021

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