Inter College and another v. State of U.P. and

Judgment

1. The instant appeal has been reported to be beyond time by two days.

2. The delay has been satisfactorily explained in the affidavit supporting the application.

3. The application under Section 5 of the Limitation Act is allowed.

4. Delay in filing the special appeal is hereby condoned. Order on Appeal

1. The instant intra-court appeal under Chapter VIII Rule 5 of High Court Rules, 1952 raises a challenge to the order dated

08.11.2024, whereby the learned Single Judge has dismissed Writ C No. 35682 of 2024 (Committee of Management Shiraze Hind 1 of 6 Inter College and another vs. State of U.P. and 4 others) on the ground of alternative remedy of filing an appeal against the order

impugned in the writ petition, as per Section 7 of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (herein-after referred to as "Act of 1971").

2. While assailing the order impugned, Shri Prabhakar Awasthi, learned counsel for the petitioner-appellant submits that since the order dated 29.08.2024 impugned in the writ petition was without jurisdiction in view of the fact that the institution in question is a minority institution and, by virtue of Section 16- D(14) of the Uttar Pradesh Intermediate Education Act, 1921 (herein-after referred to as "Act of 1921"), provisions as regards appointment of an Authorized Controller do not apply in respect of minority institution, learned Single Judge has erred in dismissing the writ petition on the ground of a remedy of appeal under the Act of 1971. He further submits that even assuming without admitting that the provisions of Section 6(3) of the Act of 1971 as regards appointment of an Authorized Controller apply in respect of a minority institution, there being no ingredients of Sections 3, 4 or 5 of the Act of 1971 involved in the matter, as would be apparent from the order impugned before the writ Court, provision of appeal contained in the statute would not be an absolute bar in exercise of writ jurisdiction.

3. Per contra, Shri Ram Kishore Pandey, learned Standing Counsel for respondent Nos. 1 to 5 alongwith Shri Indra Raj Singh, Advocate, submit that when a preliminary objection was raised by the learned Standing Counsel before the writ Court as regards availability of an effective alternative remedy of statutory 2 of 6 appeal under Section 7 of the Act of 1971, the said statement was not disputed by the learned counsel for the petitioner-appellant, as noted in fifth paragraph of the order of learned Single Judge and, hence, the special appeal against a consented order would not lie. They otherwise submit that the Joint Director of Education, Varanasi Region, Varanasi, in the order dated 29.08.2024 (impugned in the writ petition) has taken into consideration violation of the law as well as breach of directions issued by the competent authorities including State Government as regards excess payment of salary and other financial irregularities and also pendency of a vigilance inquiry against the Manager and the Principal of the institution, it is a case where circumstances covered by Section 4 of the Act of 1971 did exist and, hence, all the questions can be raised by the appellant before the appellate authority which remedy has been permitted by the learned Single Judge. It is also urged that Act of 1971 and the Act of 1921 run in separate domains and since the order impugned has been passed under the Act of 1971, reference to any provision of the Act of 1921 is thoroughly misplaced.

4. Having heard learned counsel for the parties, we are of the view that though it is correct that when an objection as regards availability of statutory appeal under Section 7 of the Act of 1971 was raised before the learned Single Judge by the learned Standing Counsel, it was not disputed by the learned counsel for the petitioner and the learned Single Judge permitted filing of an appeal, we have gone through the order dated 29.08.2024 impugned in the writ petition in the light of submissions advanced by the learned counsel for the petitioner-appellant to the effect that ingredients of Sections 3, 4 or 5 did not exist which could warrant 3 of 6 exercise of powers to appoint an Authorized Controller under Section 6(3) of the Act of 1971.

5. There is no dispute about the legal proposition that an alternative remedy may not be an absolute bar in exercise of writ jurisdiction in a case where the order under challenge has been passed without jurisdiction. The Supreme Court in Balkrishna Ram Vs. Union of India and another: (2020) 2 SCC 442 has held that the principle that a High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not the rule of law and existence of such remedy does not mean that jurisdiction of the High Court is ousted.

6. We find that the issue as to whether the circumstances under Section 3, 4 and/or 5 of the Act of 1971 ever existed in the instant case so as to warrant appointment of an Authorized Controller, has to be gone into by the writ Court and in case the writ Court arrives at a conclusion after due deliberations made by the parties that the order passed by the Joint Director of Education goes beyond the purview of the Act itself, in such an event, availability of alternative remedy of an appeal would not be an absolute bar against exercising writ jurisdiction.

7. We also find that in paragraph Nos. 30 and 31 of the writ petition, the petitioner-appellant had specifically pleaded as under:- "30. That by the perusal of the aforesaid impugned order it is very much clear that it has been passed under section 6(3) of the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teacher and others employees) Act, 1971 whereas 4 of 6 there is no any ingredient against the petitioners as mentioned in the aforesaid provision of the act of the 1971 hence aforesaid impugned is unsustainable.

31. The under Section 6(3) of the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teacher and others employees) Act, 1971, authorized controller can be appointed only for default in payment of salary as defined under section 2(g) of the Act. There is nothing contained in the impugned order reflecting any such default. The dispute about allegation of general nature which is other than those as mentioned in the 1971 Act, therefore it cannot be made subject matter of scrutiny under section 6 of 1971 Act, Hence the order impugned is unsustainable on this ground as well."

8. As regards submission that an appeal against a consented order would not lie, we find that mere fact that the preliminary objection had not been disputed by the learned counsel for the petitioner before the learned Single Judge, the same in itself does not mean that the appeal in the given facts of the matter would not lie as the principle "there can be no estoppel against the law" would apply in the facts and circumstances of the present case.

9. Since the learned Single Judge has not examined the validity of the order impugned before him, we refrain ourselves from examining the merits of the order dated 29.08.2024 passed by the Joint Director of Education and we leave it open for the learned Single Judge to permit the parties to advance submissions in that regard and then deal with the same as per his wisdom.

10. In view of above, we are of the view that writ petition should be restored before the learned Single Judge for adjudication on merits. 5 of 6

11. Consequently, the appeal stands allowed.

12. The order impugned dated 08.11.2024 passed by learned Single Judge in Writ-C No. 35682 of 2024 is set aside.

13. Writ-C No. 35682 of 2024 (Committee of Management Shiraze Hind Inter College and another vs. State of U.P. and 4 others) stands restored before the learned Single Judge exercising jurisdiction in the matter as per roster.

14. Office shall place the matter before the learned Single Judge as a fresh case after two weeks. Order Date :- 5.2.2025 Sazia (Kshitij Shailendra, J) (Arun Bhansali, CJ) 6 of 6 SAZIA AQUIL High Court of Judicature at Allahabad

impugned in the writ petition, as per Section 7 of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (herein-after referred to as "Act of 1971").

2. While assailing the order impugned, Shri Prabhakar Awasthi, learned counsel for the petitioner-appellant submits that since the order dated 29.08.2024 impugned in the writ petition was without jurisdiction in view of the fact that the institution in question is a minority institution and, by virtue of Section 16- D(14) of the Uttar Pradesh Intermediate Education Act, 1921 (herein-after referred to as "Act of 1921"), provisions as regards appointment of an Authorized Controller do not apply in respect of minority institution, learned Single Judge has erred in dismissing the writ petition on the ground of a remedy of appeal under the Act of 1971. He further submits that even assuming without admitting that the provisions of Section 6(3) of the Act of 1971 as regards appointment of an Authorized Controller apply in respect of a minority institution, there being no ingredients of Sections 3, 4 or 5 of the Act of 1971 involved in the matter, as would be apparent from the order impugned before the writ Court, provision of appeal contained in the statute would not be an absolute bar in exercise of writ jurisdiction.

3. Per contra, Shri Ram Kishore Pandey, learned Standing Counsel for respondent Nos. 1 to 5 alongwith Shri Indra Raj Singh, Advocate, submit that when a preliminary objection was raised by the learned Standing Counsel before the writ Court as regards availability of an effective alternative remedy of statutory 2 of 6 appeal under Section 7 of the Act of 1971, the said statement was not disputed by the learned counsel for the petitioner-appellant, as noted in fifth paragraph of the order of learned Single Judge and, hence, the special appeal against a consented order would not lie. They otherwise submit that the Joint Director of Education, Varanasi Region, Varanasi, in the order dated 29.08.2024 (impugned in the writ petition) has taken into consideration violation of the law as well as breach of directions issued by the competent authorities including State Government as regards excess payment of salary and other financial irregularities and also pendency of a vigilance inquiry against the Manager and the Principal of the institution, it is a case where circumstances covered by Section 4 of the Act of 1971 did exist and, hence, all the questions can be raised by the appellant before the appellate authority which remedy has been permitted by the learned Single Judge. It is also urged that Act of 1971 and the Act of 1921 run in separate domains and since the order impugned has been passed under the Act of 1971, reference to any provision of the Act of 1921 is thoroughly misplaced.

4. Having heard learned counsel for the parties, we are of the view that though it is correct that when an objection as regards availability of statutory appeal under Section 7 of the Act of 1971 was raised before the learned Single Judge by the learned Standing Counsel, it was not disputed by the learned counsel for the petitioner and the learned Single Judge permitted filing of an appeal, we have gone through the order dated 29.08.2024 impugned in the writ petition in the light of submissions advanced by the learned counsel for the petitioner-appellant to the effect that ingredients of Sections 3, 4 or 5 did not exist which could warrant 3 of 6 exercise of powers to appoint an Authorized Controller under Section 6(3) of the Act of 1971.

5. There is no dispute about the legal proposition that an alternative remedy may not be an absolute bar in exercise of writ jurisdiction in a case where the order under challenge has been passed without jurisdiction. The Supreme Court in Balkrishna Ram Vs. Union of India and another: (2020) 2 SCC 442 has held that the principle that a High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not the rule of law and existence of such remedy does not mean that jurisdiction of the High Court is ousted.

6. We find that the issue as to whether the circumstances under Section 3, 4 and/or 5 of the Act of 1971 ever existed in the instant case so as to warrant appointment of an Authorized Controller, has to be gone into by the writ Court and in case the writ Court arrives at a conclusion after due deliberations made by the parties that the order passed by the Joint Director of Education goes beyond the purview of the Act itself, in such an event, availability of alternative remedy of an appeal would not be an absolute bar against exercising writ jurisdiction.

7. We also find that in paragraph Nos. 30 and 31 of the writ petition, the petitioner-appellant had specifically pleaded as under:- "30. That by the perusal of the aforesaid impugned order it is very much clear that it has been passed under section 6(3) of the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teacher and others employees) Act, 1971 whereas 4 of 6 there is no any ingredient against the petitioners as mentioned in the aforesaid provision of the act of the 1971 hence aforesaid impugned is unsustainable.

31. The under Section 6(3) of the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teacher and others employees) Act, 1971, authorized controller can be appointed only for default in payment of salary as defined under section 2(g) of the Act. There is nothing contained in the impugned order reflecting any such default. The dispute about allegation of general nature which is other than those as mentioned in the 1971 Act, therefore it cannot be made subject matter of scrutiny under section 6 of 1971 Act, Hence the order impugned is unsustainable on this ground as well."

8. As regards submission that an appeal against a consented order would not lie, we find that mere fact that the preliminary objection had not been disputed by the learned counsel for the petitioner before the learned Single Judge, the same in itself does not mean that the appeal in the given facts of the matter would not lie as the principle "there can be no estoppel against the law" would apply in the facts and circumstances of the present case.

9. Since the learned Single Judge has not examined the validity of the order impugned before him, we refrain ourselves from examining the merits of the order dated 29.08.2024 passed by the Joint Director of Education and we leave it open for the learned Single Judge to permit the parties to advance submissions in that regard and then deal with the same as per his wisdom.

10. In view of above, we are of the view that writ petition should be restored before the learned Single Judge for adjudication on merits. 5 of 6

11. Consequently, the appeal stands allowed.

12. The order impugned dated 08.11.2024 passed by learned Single Judge in Writ-C No. 35682 of 2024 is set aside.

13. Writ-C No. 35682 of 2024 (Committee of Management Shiraze Hind Inter College and another vs. State of U.P. and 4 others) stands restored before the learned Single Judge exercising jurisdiction in the matter as per roster.

14. Office shall place the matter before the learned Single Judge as a fresh case after two weeks. Order Date :- 5.2.2025 Sazia (Kshitij Shailendra, J) (Arun Bhansali, CJ) 6 of 6 SAZIA AQUIL High Court of Judicature at Allahabad