Allahabad High Court
Vinod Kumar vs State Of U.P. Thru. Addl. Chief Secy./ ... on 11 February, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:8644
Court No. - 5
Case :- WRIT - A No. - 1708 of 2025
Petitioner :- Vinod Kumar
Respondent :- State Of U.P. Thru. Addl. Chief Secy./ Prin. Secy. Deptt. Of Medical Edu. Lko And 5 Others
Counsel for Petitioner :- Amrendra Nath Tripathi,Jyoti Pandey
Counsel for Respondent :- C.S.C.,Gyanendra Kumar Srivastava,Shubham Tripathi
Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel appearing for respondents No.1 and 4 and Shri Shubham Tripathi, learned counsel appearing for respondents No.2 and 3. Notice on behalf of respondent No.5 has been accepted by Shri Gyanendra Kumar Srivastava, Advocate.
2. Instant writ petition in the nature of quo warranto has been filed against the respondent No.6 challenging his appointment.
3. Respondent No.6 has been appointed as Director of the respondent No.2-Institute namely Kalyan Singh Super Specialty Cancer Institute.
4. Preliminary objection has been raised by Shri Shubham Tripahti, learned counsel appearing for respondents No.2 & 3 that the instant petition in the nature of quo warranto would not be maintainable against the respondent No.6 considering the Division Bench judgment of this court in the case of Dr Neetu Singh vs Sate of U.P. & Ors passed in Writ Petition No.24229(MB) of 2019, decided on 05.09.2019 as well as judgment of of this Court in the case of Ravi Kant Tiwari vs State of U.P. & Ors. in Writ Petition No.36210 (SS) of 2019, decided on 03.01.2020 wherein it has been held that in order to maintain the writ petition in the nature of quo warranto the person against whom the said writ has been filed should be exercising functions which fall within the realm of being sovereign functions.
5. Argument of Shri Shubham Tripathi, learned counsel appearing for respondents No.2 and 3 is that a perusal of the bye laws of the respondent No.2-Institute, a copy of which is Annexure-2 to the petition, would indicate that Clause 20 pertains to the powers and functions of the Director and invariably most of the powers of the Director are to be exercised either with prior approval of the State Government or subject to the overall control and superintendence of the Board/Chairman and consequently it cannot be said that the respondent No.6 exercises sovereign functions so as to entail instant writ petition to be entertained in the nature of a quo warranto.
6. Responding to that Shri Amrendra Nath Tripathi, learned counsel appearing for the petitioner argues that no doubt the writ of quo warranto would be maintainable where a person is exercising powers in the nature of sovereign functions.
7. It is contended that it is not necessary that all the powers, which are exercised by the said officer, should fall in the realm of 'sovereign function' inasmuch as perusal of the powers and functions of the Director itself indicate that though quite a few powers are to be exercised after approval of the State Government or within over all control and superintendence of Board/Chairman yet quite a large number of powers are to be exercised independently by the Director and consequently the exercise of such powers would construe that the powers as per the 'sovereign functions' are being exercised by respondent No.6 consequently the instant writ petition would be maintainable.
8. Heard learned counsel for the parties on the preliminary objection and perused the record.
9. The instant writ in the nature of quo warranto has been filed against the respondent No.6 holding the post of Director of respondent No.2-Institute.
10. A Division Bench of this Court in the case of Dr Neetu Singh (supra) has considered the question as to when a writ in the nature of quo warranto would be maintainable. The Division Bench after considering the judgment of the Hon'ble Supreme Court in the case of Agriculture Produce Market Committee vs Ashok Hariauni and Anr : (2000) 8 SCC 61 has held as under:-
" 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'.
......
14. There is a distinction between Public Office, Public Authority and Public Duty. A Professor of a University can be said to be discharging a Public Duty but that ipso-facto would not make the post of Professor as a ''Public Office' for the purpose of maintaining a Writ of Quo-Warranto.
14.1 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.
14.2 ''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.
14.3 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".
14.4 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."
15. 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.
16. 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."
16.1 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' would depends 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.
16.2 Sovereign 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."
11. Likewise, this Court in the case of Ravi Kant Tiwari (supra) has held as under:-
"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 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'."
12. From perusal of the aforesaid judgments, it emerges that the Division Bench of this Court has clearly held that in order to maintain a writ in the nature of quo warranto the person against whom the said writ has been filed, holds a public office and exercises sovereign functions.
13. Sovereign functions have been defined in the Black's Law Dictionary as under:-
"Sovereign 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."
14. Further, from perusal of the definition of the Sovereign, it emerges that a sovereign would be a person who has been endowed with supreme authority or vested with independent and supreme authority.
15. Apart from the above, the sovereign powers are to be exercised by a person holding 'public office'.
16. Hon'ble Supreme Court in the case of B. Srinivasa Reddy vs Karnataka Urban Water Supply and Drainage Board Employees Association : (2006) 11 SCC 731 after considering the definition of 'public office' as defined in Black's Law Dictionary has held that certain essential elements are to be established in order to hold an Office/Post as 'Public Office'.
17. '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."
18. As per 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."
(Emphasized by the Court)
19. From perusal of the aforesaid judgment of the Hon'ble Supreme Court and the definition as given to 'Public Office' it clearly emerges that the essential characteristics of a 'public office' would be where an authority is conferred by law, there is a fixed tenure of office and power to exercise some portion of sovereign functions of the Government. Said sovereign functions are to be exercised without control of superior power other than law.
20. From perusal of the powers and functions of the Director as per the bye laws, it clearly emerges that quite a large number of the powers that exercised by the Director, are to be exercised either with the approval of the Chairman/ specific approval of the Board/ taking approval as specified by the State Government/ over all control and superintendence of the Board/Chairman. A few examples are the powers as provided in Clause 20(1), (4), (7), (11), (13), (17), (18) etc.
21. Perusal of the aforesaid powers as are to be exercised by respondent No.6 itself indicate that while vesting the powers with the Director he has not been given independent functioning with regard to his powers rather quite a large number of his powers are circumscribed with control either from the State Government or to be exercised with the approval of the Board/Chairman and thus it cannot be said that respondent No.6 has been vested with sovereign powers so as to maintain the instant petition by means of a quo warranto, even though he may be holding a 'public office'.
22. So far as the argument of the learned counsel for the petitioner that the Division Bench has held that only some powers are to fall in the nature of sovereign powers, it cannot be a case that once a sovereign function is to be exercised by an authority, the said authority would be exercising powers under the control/ superintendence/ with prior approval of the State Government. Thus, the said argument is rejected.
23. Considering the aforesaid discussion, the preliminary objection is upheld. The writ petition is dismissed.
Order Date :- 11.2.2025
prateek
