Madhya Pradesh High Court
Devi Ahilya Arts And Commerce College vs Dr. (Smt.) Shikha Trivedi on 31 October, 2017
W.A. No.531/2017
31/10/2017
Shri S.C. Bagadiya, learned Senior Counsel with Ms.
Kirti Patwardhan, learned counsel for the appellants.
Shri L.C. Patne, learned counsel for the respondent
No.1.
Shri Rohit Mangal, learned Govt. Advocate for the respondent Nos.2 and 3.
Shri Vivek Sharan, learned counsel for the respondent No.4/University.
They are heard.
2. Appellants (respondent Nos.4 and 5 in the writ petition) are aggrieved by order dated 4/09/2017, passed in W.P. No.1903/2016 by which learned writ court allowed the writ petition on the ground that at no point of time, approval of the Executive Committee was obtained before terminating the services of the respondent No.1 keeping in view the Statute 28(College Code) framed under the provisions of the M.P. Vishwavidhyalaya Adhiniyam, 1973 and directed the appellants and respondent Nos.2 to 4 to reinstate the respondent No.1 in service. The learned writ court while reinstating the respondent No.1 also directed the appellants and respondent Nos.2 to 4 to follow the prescribed procedure as provided under Statute 28(Collage Code) of the University. It has also observed that all other issues are left open.
3. Learned Senior Counsel for the appellants has submitted that the respondent No.1 was not duly appointed on the post of Principal as per Rule - 16(2) of Statute 28 of the University, according to which, no appointment on the post of Principal shall be made except with the prior approval of the Executive Council. He further submitted that her appointment on the sanctioned post of Principal was in utter disregard of college code. The requirement of appointment o the post of Principal was not fulfilled by the respondent No.1 and, therefore, her so called appointment was illegal. He has also drawn our attention to her termination order dated 1/02/2016(Annexure-P/31) and submitted that after due enquiry her services has been terminated. As per Clause 32(3) of Statute 28 against the order of termination dated 1/02/2016, an appeal shall lie to a Tribunal consisting of :-
(a) a nominee of the Kulpati, other than a member of the Executive Council who will act as the Chairman;
(b) The aggrieved teacher's nominee to be named by the appellant in his appeal, and
(c) A nominee of the Governing Body.
4. He submitted that the respondent No.1 was not validly appointed and there was no dispute between the parties that requirement of Clause 32(3) of Statute 28 was not complied with by the respondent No.1, but inspite of that, the writ petition was entertained and impugned order has been quashed by directing the appellants and other co- respondents to reinstate the respondent No.1 in service.
5. He further submitted that as respondent No.1 was not appointed as per Rule 16 of College Code 28, because as per Rule 16 of the Collage Code 28, no appointment on the post of Principal can be made except prior approval of the Executive Council and since appointment of the respondent No.1 was itself illegal, therefore, the question of following College Code 28 for termination of the services does not arise. Inspite of specific objection raised by the respondents to the writ petition, the learned writ court without deciding these issues and without meeting out the contentions advanced by the learned counsel for the respondents, passed the impugned order and allowed the writ petition and, therefore, he prays that the impugned order be set aside and the writ petition of the respondent No.1 be dismissed.
6. Per Contra, learned counsel for the respondent No.1 has submitted that the respondent No.1 was appointed as Lecturer in the Year 1988. Thereafter, she was granted Senior Grade/Selection Grade and by due process of law, she was appointed as Principal. On 26/04/2015, she was placed under suspension and by subsequent order dated 1/02/2016, her services were terminated. After her appointment in the year 1988, the present appellants never challenged her appointment order on the ground that the same was contrary to Rule 16 of Statute 28(Collage Code). He submitted that as her termination was without prior approval of the Executive Council, therefore, the learned writ court has rightly came to the conclusion that prior approval is one of the pre-condition for terminating the respondent No.1 as her termination was in violation to the Statute, therefore, the learned writ court has rightly entertained the writ petition without giving any direction to the respondent No.1 to avail the statutory remedy of appeal provided under Clause 32(3) of College Code 28. ....
7. It is well settled by the Hon'ble Apex Court in catina of decisions, the writ petition cannot be decided only on the ground of alternative remedy. The High Court under Article 226 of the Constitution of India has very wide powers in issuing appropriate writ and can exercise its jurisdiction even if there is alternative remedy. If order is in violation principle of natural justice or in violation of Statute then the writ petition is not maintainable.
8. In the present case, the order of termination was in violation of Statute and therefore, we are of the view that the learned writ court rightly entertained the writ petition and passed the impugned order leaving other issues open.
9. In the case of Dr. Janet Jeyapaul vs SRM University and Anr., decided on 15th December, AIR 2016 SC 73, the Hon'ble Apex Court has held that in normal course the contention to approach the District Judge would have been accepted, but where writ court not only entertained writ petition but allowed that petition on merits where as the Division Bench of the High Court in appeal declined to examine the merits of the case and directed the appellant to approach the Tribunal by holding that the writ petition was not maintainable, it would not be proper to direct appellant to approach the Tribunal and set aside the order of Division Bench of High Court.
10. The two decisions cited by the appellants in the case of Ramesh Ahluwalia Vs. State of Punjab & Ors. decided on 13/09/2012 and Executive Committee of Vaish Degree College, Shamli & Ors. Vs. Lakshmi Narain & Ors. AIR 1976 SC 888 will not be applicable in the present facts and circumstances of the case.
11. The case of respondent No.1 is squarely covered by the aforesaid decision of the Hon'ble Apex Court in the case of Dr. Janet Jeyapaul Vs. SRM University & Anr.,(Supra). As the matter is remanded to the appellants and other co- respondents to follow the prescribed procedure as provided under Statute 28 of the College Code and, therefore, it is not necessary for us to deal with other issues. The appellants are at liberty to proceed in accordance with the direction made by the learned writ court on 4/09/2017.
12. With the aforesaid, the writ appeal is dismissed.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
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