SOHAN LAL SHARMA Vs. STATE OF U.P.

JUDGEMENT

(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.) 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 dtd. 29/9/2020. He further submitted that earlier Chief Medical Officer, Kanpur Nagar passed an order dtd. 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 dtd. 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 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 dtd. 29/9/2020 and removed him from the post of Chief Medical Superintendent, District Hospital Etah.

(3.) 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.