Point of Law: If the irregularity in the appointment of an office held at pleasure could be cured by immediate reappointment, the Court in the exercise of its discretion would doubtless refuse the information.” Lush, J. expressed the view that the Court would not make an order ousting the holders of public offices from their office if the existing defect, if there is one, could be cured, and they could be reappointed. Rex v. Stacey, 99 English Reports 938 (2) holds that writ of quo warrant, is not a motion of course and it is in the discretion of the Court to issue it considering the circumstances of the case. Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford: The Rev.

JUDGMENT :

1. Initially, the instant writ petition was filed by the petitioner challenging Clause 4 of the impugned order dated 31.08.2020 to the extent of posting and taking over charge on the post of Director/Principal Medical Superintendent, Balrampur Hospital, Lucknow by Dr. Rajeev Lochan (opposite party no.3). The petitioner, inter alia, had further prayed for a direction to the opposite party no.3 not to function and work on the said post and also direct the opposite parties no.1 and 2 to appoint/post a regular promoted Director, Medical and Health Services on the abovesaid post.

2. The instant writ petition was entertained by this Court on 02.11.2020 and during the course of argument, on the objection raised by learned Counsel appearing on behalf of the State, the petitioner had sought for some time to file an affidavit stating therein that as to how, the petitioner is affected by the impugned order.

3. In pursuance to the order dated 02.11.2020, the petitioner filed an application bearing No.66564 of 2020 supported by an affidavit, whereby, the petitioner had sought for certain amendments in the pleadings of the writ petition and also the prayer clause.

4. Considering the submissions of learned Counsel for the parties and also the no objection of the State, the application is allowed.

5. With the consent of the parties, this Court proceeds to hear the matter finally at the admission stage.

6. By means of amendment application, the petitioner has sought for quo-warranto restraining the opposite party no.3 to continue on the post of Director/Principal Medical Superintendent of Balrampur Hospital, Lucknow and remove him forthwith from the said post while declaring his appointment as illegal and void. He also prayed for a direction to the opposite parties no.1 and 2 to hold regular selection on the said post in accordance with Rules.

7. Submission of learned Counsel for the petitioner is that initially the petitioner was appointed on the post of Medical Officer vide order dated 18.05.1990 in the Provincial Medical and Health Service Cadre, Uttar Pradesh. Later on, the petitioner was promoted on the post of Senior Consultant (Neuro Physician) (Level-IV). At present, the petitioner is posted as Senior Neuro Physician at Balrampur Hospital, Lucknow [(Senior Consultant) (Level-IV)].

8. Learned Counsel for the petitioner has further submitted that the opposite party no.3 was initially appointed on the post of Medical Officer in Provincial Medical and Health Services Cadre, Uttar Pradesh. Subsequently, he was promoted on the next promotional post in the cadre and lastly, he was promoted to the post of Additional Director, Medical Health.

9. Learned Counsel for the petitioner has again submitted that the opposite party no.3 was never promoted to the post of Director, Medical and Health Services rather he was retired on 31.08.2019 from the post of Additional Director Medical Health after attaining the age of superannuation. The State Government while creating an Ex-cadre post of Additional Director in the department of Medical and Health Services, Uttar Pradesh had re-appointed/re-employed the opposite party no.3 on the said Ex-cadre post for one year vide order dated 31.08.2019 and directed him to hold the post of Officiating/In-charge, Director/Principal Medical Superintendent, Balrampur Hospital, Lucknow during re-appointment/re-employment. Vide order dated 31.08.2020, the re-appointment/re-employment of the opposite party no.3 was extended for a period of three years.

10. It has also been submitted by learned Counsel for the petitioner that considering the increase of outdoor and indoor patient of specialist doctors and in order to provide medical facilities to poor people, the State Government vide Government Order dated 13.01.2014 had decide to re-appoint/re-employed the retired specialist doctor of Provincial Medical and Health Cadre upto the age of 65 years. Thereafter, vide Government Order dated 19.07.2017, the State Government af