Uttarakhand High Court
WPSB/375/2023 on 10 August, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAKESH THAPLIYAL
WRIT PETITION (S/B) NO. 375 OF 2023
10TH AUGUST, 2023
BETWEEN:
Shiv Swaroop Tripathi & others .....Petitioners.
And
State of Uttarakhand & others ....Respondents.
Counsel for the Petitioners : Dr. Aman Rab, learned
counsel.
Counsel for the State : Mr. B.S. Parihar, learned
Standing Counsel and Ms. Puja
Banga, learned Brief Holder.
The Court made the following:
JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)
The petitioners have preferred the present writ
petition to seek the following relief:-
"i. Issue a writ, order or direction in the nature of quo
warranto to the respondent no.3 to 7 as they have no
authority to continue to hold the respective posts in the State
of Uttarakhand after the final disposal of WP No.32389 of
1997 vide order dated 30.10.2007 passed in Special Appeal
no.99 of 1999, wherein the decision of the Hon'ble Single
Judge of the Hon'ble High Court of Allahabad dated
09.04.1998 has been set aside".
2. Brief facts, which are relevant to be noticed, are
that respondent nos.3 to 7 were appointed by the State of
Uttar Pradesh as Upper Division Assistant/ Lower Division
Assistant in pursuance of the judgment dated 09.04.1998,
passed by the learned Single Judge of the High Court of
Allahabad in Civil Misc. Writ Petition No.32389 of 1997,
"Yogendra Kumar Pal vs. State of U.P. & another". The said
respondents were not parties to the said writ petition.
However, they were given benefit thereof by the State of
Uttar Pradesh by granting appointment, as aforesaid. The
said judgment of the learned Single Judge dated 09.04.1998
was carried in special appeal by the State of Uttar Pradesh
vide Special Appeal No.99 of 1999. The Division Bench
allowed the said special appeal on 30.10.2007, and the
judgment of the learned Single Judge was set-aside.
3. Pertinently, there was no direction by the Division
Bench to dislodge the appointees, which included the private
respondents herein. The application moved by some of the
affected persons, to seek recall of the said judgment dated
30.10.2007, being Civil Misc. Recall Application No.265023 of
2007, was also dismissed by the Division Bench on
02.05.2008.
4. Thereafter, Special Leave Petition No.14296-14297
of 2008 was preferred before the Supreme Court by one
Yogendra Kumar Pal, against the judgment of the Division
Bench of the High Court of Allahabad in Special Appeal No.99
of 1999, dated 30.10.2007, as also against the order passed
in the Recall Application, dated 02.05.2008. The said Special
Leave Petition was disposed of on 03.02.2014. The said
order shows that the appointments granted in pursuance of
the judgment dated 09.04.1998, passed by the learned Single
Judge of the High Court of Allahabad, were not disturbed.
However, their seniority was downgraded and re-fixed.
5. Dr. Rab submits that the said order of the Supreme
Court, dated 03.02.2014, was not applicable to the private
respondents in the present writ petition, inasmuch, as they
were not parties to the SLP; they had moved an application
for impleadment, which was, subsequently, withdrawn, and;
by 03.02.2014, the bifurcation of the State of Uttarakhand
had already taken place, and no similar consent was granted
before the Supreme Court, by the State of Uttarakhand.
6. The further case of the petitioners is that they had
made representation against the continuation of the services
of the private respondents herein, which was rejected only on
23.06.2023, and consequently, they approach this Court by
filing the present writ petition.
7. We are of the view that the present writ petition is
misconceived, inasmuch, as a writ of quo warranto cannot lie
in the facts and circumstances of the case. It is not the case
of the petitioners that the private respondents are not having
the requisite qualification to man the posts that they are
holding. At the highest, the case of the petitioners is with
regard to the process by which the said respondents were
initially appointed, and continued, even after the judgment of
the Division Bench of the High Court of Allahabad in Special
Appeal No.99 of 1999.
8. In our view, the appointment of the private
respondents, when granted, by the State of U.P, was valid,
inasmuch, as the judgment of the learned Single Judge was
prevailing, and they were appointed in terms of the said
judgment. When the Division Bench allowed the Special
Appeal No.99 of 1999, it did not direct that those appointed
under the judgment of the learned Single Judge dated
09.04.1998, be terminated.
9. Therefore, the State had the option of taking a
decision- whether, or not, to continue the services of those
UDA/ LDA, who have been appointed in pursuance of the
judgment of the learned Single Judge of the High Court of
Allahabad. Neither the State of Uttar Pradesh, nor the State
of Uttarakhand, exercised the option to terminate the services
of such appointees- which included the private respondents
herein.
10. That being the position, in our view, it is not open
to the petitioners to challenge the appointments of the
private respondents.
11. For the aforesaid reasons, we do not find any merit
in this writ petition and the same is, accordingly, dismissed.
12. Pending application, if any, also stands disposed of.
(VIPIN SANGHI, C.J.)
(RAKESH THAPLIYAL, J.)
Dated: 10th August, 2023
NISHANT
