Allahabad High Court
Dr. Smt. Abha Sharma, Associate ... vs State Of U.P. Through Principal ... on 27 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 812
Author: Biswanath Somadder
Bench: Biswanath Somadder, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- SPECIAL APPEAL No. - 64 of 2020 Appellant :- Dr. Smt. Abha Sharma, Associate Professor, Department Of English, Agra College, Agra Respondent :- State of U.P. through Principal Secretary, Higher Education. Government of U.P., Lucknow and 5 others Counsel for Appellant :- Radhakant Ojha (Senior Advocate) assisted by Ram Gopal Tripathi, advocate Counsel for Respondent No.1 :- Ms. Akansha Sharma, Standing Counsel Counsel for Respondent Nos. 2 & 3:- M.N. Singh Counsel for the Respondent Nos.4, 5 & 6:-Pankaj Misra Hon'ble Biswanath Somadder,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. The Special Appeal has been preferred in respect of a judgment and order dated 7th January, 2020, passed by a learned Single Judge in Writ - A No.-19882 of 2019 (Dr. Smt. Abha Sharma vs. State of U.P. and 5 others). By the impugned judgement and order, the learned Single Judge was pleased to dismiss the writ petition purely on the ground of alternative remedy.
2. This Special Appeal has been preferred by the writ petitioner, namely, Dr. Smt. Abha Sharma.
3. For convenience, the impugned judgment and order is reproduced hereinbelow in its entirety:-
"Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri K.B. Dixit, counsel for the petitioner and Sri M.N. Singh, learned counsel for respondent Nos.2 and 3.
The petitioner by means of the present writ petition has made a prayer to quash the impugned order dated 27.11.2019 passed by the Vice Chancellor determining the seniority between the petitioner and respondent no. 6.
A preliminary objection has been raised by counsel for the respondents that the statutory alternate remedy of reference under Section 68 of State Universities Act is available to the petitioner, therefore, the writ petition is not maintainable.
It is contended by Sri R.K. Ojha, learned Senior Advocate for the petitioner that the petitioner has been senior to respondent no. 6 since 1996 and no objection has been raised by respondents in the seniority list published subsequent to 1996 by the respondents. Thus, the submission is that long standing seniority cannot be disturbed in view of the settled principle of law. In this regard, learned counsel for the petitioner has placed reliance on Full Bench judgment of this Court passed in the case of Farhat Hussain Azad vs. State of U.P. and Ors. reported in (2005) 1 UPLBEC 474 and Division Bench judgment of this Court passed in Special Appeal No. 825 of 2004 (Rakesh Kumar Pandey vs. State of U.P. & Anr.).
Be that as it may, the petitioner has statutory remedy of reference under Section 68 of the State Universities Act, therefore, this Court is not inclined to interfere in the matter at this stage as the contention advanced by counsel for the petitioner can very well be seen by the Chancellor under Section 68 of the State Universities Act.
Thus, the writ petition is, accordingly, dismissed on the ground of alternate remedy."
4. In the facts of the instant case, we notice that the Principal of the institution in question (i.e. Agra College, Agra) decided the question of seniority as far back as on 12th July, 2016, and the private respondent no.6, namely, Dr. C.K. Gautam, never invoked the remedy of preferring a statutory appeal under the provisions of Clause 17.14 of the First Statutes of Dr. Bhim Rao Ambedkar University, Agra. For ease of reference, Clause 17.14 of the aforementioned First Statutes is being extracted below :-
"17.14 All disputes regarding seniority of teachers (other than the Principal), shall be decided by the Principal of the College who shall give reasons for the decision. Any teacher aggrieved by the decision of the Principal may prefer an appeal to the Vice-Chancellor within 60 days from the date of communication of such decision to the teacher concerned. If the Vice-Chancellor disagrees from the Principal, he shall give reasons for such disagreement."
5. In such facts and circumstances to simply relegate the appellant / writ petitioner to avail the statutory remedy of a reference under Section 68 of the Uttar Pradesh State Universities Act, 1973, was not proper.
6. The rule of exhaustion of statutory remedies before a writ is granted has consistently been held to be a rule of self imposed limitation, a rule of policy and discretion rather than a rule of law. The Courts, therefore, in appropriate cases, may issue appropriate writs, notwithstanding that the statutory remedies have not been exhausted. The existence of an alternative remedy does not per se affect, curtail or impinge upon the jurisdiction of the High Court under Article 226 of the Constitution of India, which can legitimately be invoked by an aggrieved party in a fit case.
7. The legal position in this regard has been succinctly summarized in the judgment in the case of Commissioner of Income Tax and Ors. Vs. Chhabil Dass Agarwal1, wherein it was stated as follows :-
"11....It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy...(See State of U.P. v. Mohd. Nooh AIR 1958 SC 86, Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. (2003)2 SCC 107 and State of H.P. v. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499)
12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission AIR 1954 SC 207, Sangram Singh v. Election Tribunal AIR 1955 SC 425, Union of India v. T.R. Varma AIR 1957 SC 882, State of U.P. v. Mohd. Nooh AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras AIR 1966 SC 1089 have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted.(See N.T. Veluswami Thevar v. G. Raja Nainar AIR 1959 SC 422, Municipal Council, Khurai v. Kamal Kumar AIR 1965 SC 1321, Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436, S.T. Muthusami v. K. Natarajan (1988) 1 SCC 572, Rajasthan SRTC v. Krishna Kant (1995) 5 SCC 75, Kerala SEB v. Kurien E. Kalathil (2000) 6 SCC 293, A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695, L.L. Sudhakar Reddy v. State of A.P. (2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (2001) 8 SCC 509, Pratap Singh v. State of Haryana (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72)."
8. The aforementioned view that the existence of an alternative remedy does not create an absolute bar on the exercise of writ jurisdiction by a High Court has been reiterated in a recent decision in the case of Maharashtra Chess Association Vs. Union of India and Others2, in the following words :-
"22...The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case.
23. This understanding has been laid down in several decisions of this Court. In Uttar Pradesh State Spinning Co. Limited v. R S Pandey (2005) 8 SCC 264 this Court held:
"11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution..."
24. The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v. Mohammad Nooh 1958 SCR 595 where Justice Vivian Bose observed:
"10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
25. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors..."
9. Having regard to the facts of the case, and in particular the fact that one of the principal grounds sought to be raised to assail the order impugned in the writ petition is that the statutory authority has not acted in accordance with the provisions of the relevant statutory provisions, this Court is of the view that the writ petition ought to have been heard upon exchange of affidavits and only after consideration of what has been stated by the respective parties in their affidavits a final decision ought to have been taken in the matter.
10. As such, we are of the view that the impugned judgment and order cannot be sustained and is liable to be set aside and is accordingly set aside.
11. The writ petition, being Writ - A No.-19882 of 2019 (Dr. Smt. Abha Sharma vs. State of U.P. and 5 others) shall be heard finally upon exchange of affidavits.
12. Counter affidavit to be filed within four weeks. Rejoinder thereto, if any, be filed within two weeks therefrom.
13. List this matter on 16.3.2020 before the learned Bench having appropriate determination.
Order Date :- 27.1.2020 Pratima / Neeraj (Biswanath Somadder,J.) (Dr. Y.K. Srivastava,J.)