Allahabad High Court
Sohan Lal Sharma vs State Of U.P. And 3 Others on 12 May, 2022
Bench: Surya Prakash Kesarwani, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 3
Case :- SPECIAL APPEAL No. - 318 of 2022
Appellant :- Sohan Lal Sharma
Respondent :- State Of U.P. And 3 Others
Counsel for Appellant :- Aklank Kumar Jain
Counsel for Respondent :- C.S.C.
Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Jayant Banerji,J.
Heard learned counsel for the appellant and the learned Standing Counsel.
This special appeal has been filed praying to set aside the judgment and order dated 17.01.2022 in Writ-A No.12726 of 2021 (Sohan Lal Sharma vs. State Of U.P. And 3 Others) passed by the learned Single Judge.
The aforesaid Writ-A No.12726 of 2021 has been filed praying for a writ, order or direction in the nature of certiorari to quash the order dated 29.09.2020 and to issue a writ, order or direction in the nature of quo warranto to oust the respondent No.4 from the post of Chief Medical Superintendent, District Hospital, Etah.
So far as the relief No.1 sought by the petitioner is concerned, the learned Single Judge has held that the appellant/ petitioner is not an aggrieved person and, therefore, the writ petition at his instance is not maintainable as per service jurisprudence. To come to the aforesaid conclusion, the learned Single Judge has relied upon the judgment of Hon'ble Supreme Court in the case of R.K. Jain vs. Union of India and others, (1993) 4 SCC 119 (para 74) and the judgment in the case of Sanker Verma vs. State of U.P. Thru Principal Secretary Educaion Lucknow and others passed by the Lucknow Bench of this court in Service Single No.14329 of 2019 decided on 23.05.2019, in which it has been held that in service jurisprudence, it is settled that it is for the aggrieved person to assail the legality or correctness of the order.
So far as the second relief sought by the appellant/ petitioner is concerned, we find that the learned Single Judge on the point of quo warranto has held, as under:
"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."
We are in complete agreement with the view taken by the learned Single Judge. This Special appeal is totally devoid of merit and is, therefore, dismissed.
Order Date :- 12.5.2022
NLY
