Point of Law : once the post of Chief Medical Superintendent is not Public Office, no writ of quo warranto can be issued.

JUDGMENT :

Neeraj Tiwari, J.

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. Present 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."

3. 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 dated 29.9.2020. He further submitted that earlier Chief Medical Officer, Kanpur Nagar passed an order dated 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 dated 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 dated 29.9.2020 and removed him from the post of Chief Medical Superintendent, District Hospital Etah.

4. Dr. D.K. Tiwari, learned Additional Chief Standing Counsel has opposed the submission of learned counsel for the petitioner and submitted that present petition for writ of certiorari as well as quo warranto is not maintainable for many reasons. He next submitted that first of all impugned order dated 29.9.2020 is not a promotional order, but it is a transfer order only. He further submitted that in service matter, writ petition can only be filed by the person aggrieved, whereas in the present 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 impugned order dated 29.9.2020, 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.

5. In support of his contention, he has placed reliance upon the judgments of the Apex Court as well as this Court in the cases of R.K. Jain Vs. Union of India and others reported in 1993 (4) SCC 119, Dr. Prabhu Nath Prasad Gupta vs. State of U.P. And others reported in 2003 (52) ALR 520 and Sanker Verma vs. State o