Gopal Kumar vs State Of Up And 4 Others
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Allahabad High Court

Gopal Kumar vs State Of Up And 4 Others on 8 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:83211
 
Court No. - 34
 

 
Case :- WRIT - A No. - 7041 of 2024
 

 
Petitioner :- Gopal Kumar
 
Respondent :- State Of Up And 4 Others
 
Counsel for Petitioner :- Brahma Nand Pandey,Sudhir Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble J.J. Munir,J.
 

1. A preliminary objection has been raised in this petition by Mr. Sharad Chandra Upadhyay, learned Standing Counsel appearing on behalf of the State that this writ petition for the issue of a writ, order or direction in the nature of quo warranto is not maintainable. He says that the petitioner questions the appointment of respondent no. 5, Arvind Kumar Singh as a Peon with the Janta Inter College, Raneepur, District Mau, whom he calls the usurper in office and wants him to be ousted by a quo warranto. It is submitted by Mr. Upadhyay that a Peon in a private but aided intermediate college, cannot be regarded the holder of a public office so as to render his appointment amenable to challenge by quo warranto.

2. Mr. Sudhir Kumar Singh, learned counsel for the petitioner says that it is not so. His submission is that the 5th respondent has been appointed to a post with a private but aided institution borne on State grant. It is the State that bears the financial burden of paying for the services of the 5th respondent. If the 5th respondent is not at all qualified to hold the post of a Peon in an aided intermediate institution, the post supported by State grant, the petitioner has the right to seek his ouster as a citizen.

3. There is no doubt that in a writ petition where a petitioner seeks the issue of a writ of quo warranto, locus standi is not relevant. The reason is that the petitioner as a citizen or a member of the public is presumed to be affected by the actions in office of a usurper, if a usurper indeed has entered upon and is holding a public office. Therefore, what is important is that the office held by the alleged usurper must be a public office that may affect one and all for a substantial part of the population, entitling anyone to question his right to continuance in office. The moot question, therefore, is, if a Peon in a private aided intermediate institution the holder of such a public office?

4. Mr. Sudhir Kumar Singh, learned counsel for the petitioner has placed reliance, in support of his contention, upon the decision of the Bombay High Court in Shikshan Prasarak Mandal and another vs. The State Information Commissioner & another, 2010 0 Supreme (Bom)1124. As the facts of the case in Shikshan Prasarak Mandal (supra) would show that in Shikshan Prasarak Mandal, the petitioner had challenged the notification issued by the Joint Director of Education dated 12th September, 2008, by which, Principals and office bearers of non government colleges receiving grants in aid were directed to appoint Public Information Officers, in order to comply with the Right to Information Act, 2005 (for short, 'the Act of 2005'). The issue in the said writ petition, therefore, was if non government schools/colleges or institutions receiving grant-in-aid, either from the State Government or the Central Government, were covered by the definition 'Public Authority' within the meaning of the Act of 2005. It was held that they were 'Public Authority' amenable to the jurisdiction and regime of the Act of 2005. This decision has hardly any relevance to the point here.

5. In Ravi Kant Tiwari vs. State of U.P. through Chairman Sanjay Gandhi P.G. Institute and others, 2020(1) ILR (Allahabad) 1883, the question, as to who is the holder of a 'Public Office' for the purpose of being amenable of a quo warranto, was considered. This Court in Ravi Kant Tiwari (supra) while examining the said question observed:

"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, 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."

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 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.

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'.

6. In Ravi Kant Tiwari, it was held that the Chief Medical Superintendent of the SGPGI does not discharge any kind of a sovereign function of the government, either legislative or executive, so as to be called the holder of a public office.

7. There is then a Bench decision of this Court in Neetu Singh vs. State of U.P. and others, 2019 0 Supreme (All) 2096, where a quo warranto was sought to oust from the office of Professor in the Department of Center for Advanced Research (Stem Cell/Cell Culture Lab), King George Medical University, the respondent who was incumbent. Obviously, the Professor was not the holder of a public office in the sense it is understood for the purpose of being amenable to a quo warranto. He did not enjoy any of the trappings of powers of the State, though funds to pay for his services might have come from the public exchequer.

8. The idea behind a quo warranto is to protect citizens from usurpers in public office, by which an injury may be caused to them. If the holder of a position enjoys some powers of the State or in the exercise of his duties, essentially has trappings of powers of the State, the likely effect or impact that it may have on the rights of citizens in general, entitles anyone to question his presence in that office by a quo warranto, if by the qualifications prescribed for that office, he is not at all entitled to hold it. The holder of a public post or a post under the Government or a post in an institution funded by the State cannot be regarded the holder of a 'public office' in all circumstances. There are many offices of lesser importance, or may be, of profound importance but not sovereign in character that may not affect the rights of citizens at large by the decisions they make. The expertise of a Doctor, may be life giving to his patient, or the learning of a Professor may be important to a student for his development that does not make either, men of necessary resort where citizens in general must visit, for the purpose of enforcement of their rights, settlement of their claims and so on. It is on that account that the Professor of King George Medical University in Neetu Singh (supra) and the Chief Medical Superintendent in Ravi Kant Tiwari were not held to be holders of a 'public office'.

9. Respondent no. 5 here is a Peon. Not that he is an unimportant man in society but at the same time, he is certainly not the holder of an office that has any trappings of State power. In that sense of the matter, he is not amenable to a writ of quo warranto.

10. This Court must place on record our appreciation for the tenacity of the learned Counsel for the petitioner, who, in the face of adverse authority, did not lay down cudgels until the last to persuade the Court that a Peon is, afterall, the holder of a public office, who can be ousted by a writ of quo warranto. Unfortunately, we cannot agree.

11. The writ petition fails and is summarily dismissed as not maintainable. The preliminary objection raised by Mr. Upadhyay is upheld.

Order Date :- 8.5.2024

Brijesh Maurya