The Allahabad High Court held that absence from service for a specified period of time cannot be a ground to issue a warrant, nor can he be removed from office.
A Single Bench of Justice Neeraj Tiwari passed this order while hearing a petition filed by Sohan Lal Sharma.
The Petition has been filed with the following prayers:-
“(i) Issue a suitable order or direction in the nature of certiorari quashing the impugned order dated 29.9.2020 passed by the Government of U.P, Chikitsa Anubhag-2, Lucknow with regard to the respondent no 4 whose name is placed at serial No 5 of the aforesaid impugned order.
(ii) Issue a suitable order or direction in the nature of quo warranto commanding the respondents to oust the respondent no 4 from the post of Chief Medical Superintendent, District Hospital, Etah.”
Counsel for the petitioner submitted that petitioner is Netra Parikshan Adhikari posted at District Hospital, Etah from February 8, 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 dated September 29, 2020.
He further submitted that earlier Chief Medical Officer, Kanpur Nagar passed an order dated July 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 (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 dated September 29, 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.
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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 (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 canceling the promotional order of respondent no 4 dated September 29, 2020 and removed him from the post of Chief Medical Superintendent, District Hospital Etah.
D.K Tiwari, Additional Chief Standing Counsel has opposed the submission of counsel for the petitioner and submitted that the petition for writ of certiorari as well as quo warranto is not maintainable for many reasons.
He next submitted that first of all the impugned order dated September 29, 2020 is not a promotional order, but it is a transfer order only.
He further submitted that in service matters, writ petition can only be filed by the person aggrieved, whereas in the case, petitioner is not the person aggrieved. He is admittedly subordinate to respondent no 4 in the same hospital and even in case of quashing of the order dated September 29, 2020, petitioner would not be entitled to hold the post of Chief Medical Superintendent at District Hospital, Etah, therefore, writ petition for writ of certiorari is not maintainable.
Standing Counsel further submitted that writ of quo warranto may also not be issued in the case. For issuance of writ of quo warranto, it has to be seen by the Court as to whether the 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 the present case is concerned, on both the grounds, writ of quo warranto may not be issued.
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So far as qualification is concerned, there is no dispute on the point that respondent no 4 is fully qualified to hold the said post, therefore, mere his absence for more than three years from service, filing of a case and ultimately permitted by the employer of State Government to join his service cannot be a ground for issuance of writ of quo warranto.
The Court observed that,
There is no dispute on the issue that in service matters, writ petition can only be filed by the person aggrieved. Undisputedly, petitioner is not aggrieved by the order of Government of U.P Chikitsa Anubhag-2 Lucknow dated September 29, 2020 by which respondent no 4 was transferred and posted as Chief Medical Superintendent, District Hospital Etah as he is not prospective incumbent for the same post.
In this case, there is no doubt on the point that petitioner is not aggrieved by the order dated September 29, 2020, which is necessary requirement in service matter for filing a writ petition, therefore, in light of facts as well as judicial pronouncement made by Courts, this petition is not maintainable and no writ of certiorari can be issued for quashing the order dated September 29, 2020.
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The Court held that,
Now coming to the second point as to whether respondent no 4 is eligible 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 qualifications for holding the post of Chief Medical Superintendent. Therefore, mere absence from service for a certain time, cannot be a ground for issuance of writ quo warranto. The State Government is the employer of respondent no 4 and the employer has always the right to condone/waive off the certain deficiencies, if found.
In the case, assuming respondent no 4 has not joined his service for a certain time, it can only be an irregularity and not illegality for which the 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 the same hospital cannot be said to be illegality and mere his absence from the service for a 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.
Therefore, under such facts of the case, the Court found no substance, and the court dismissed the petition.