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IN THE HIGH COURT OF ALLAHABAD
Biswanath Somadder, Yogendra Kumar Srivastava, JJ.
Dr. Smt. Abha Sharma – Appellant
Versus
State of U.P. through Principal Secretary, Higher Education others – Respondents
Special Appeal No. 64 of 2020
Decided On : 27-01-2020
Uttar Pradesh State Universities Act, 1973 – Section 68 – Special Appeal preferred in respect of a judgment and order passed by Single Judge was pleased to dismiss writ petition purely on ground of alternative remedy – Prayer to quash order passed by Vice Chancellor determining seniority between petitioner and respondent no. 6 – Held, One of the principal grounds sought to be raised to assail order impugned in writ petition is that statutory authority has not acted in accordance with provisions of relevant statutory provisions – This Court view that writ petition ought to have been heard upon exchange of affidavits and only after consideration of what has been stated by respective parties in their affidavits a final decision ought to have been taken in matter – Impugned judgment and order set aside – Matter List on 16.3.2020 before Bench having appropriate determination – Order accordingly. (Paras 9, 10 and 13)
Facts of the case:
Petitioner has been senior to respondent no. 6 since 1996 and no objection has been raised by respondents in seniority list published subsequent to 1996 by respondents – Submission is that long standing seniority cannot be disturbed in view of settled principle of law.
Findings of the court:
One of the principal grounds sought to be raised to assail order impugned in writ petition is that statutory authority has not acted in accordance with provisions of relevant statutory provisions – This Court view that writ petition ought to have been heard upon exchange of affidavits and only after consideration of what has been stated by respective parties in their affidavits a final decision ought to have been taken in matter – Impugned judgment and order set aside – Matter List on 16.3.2020 before Bench having appropriate determination.
Result: Order accordingly
JUDGMENT :
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 others). By the impugned judgment 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 here-in-below in its entirety:
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 :
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 Co
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