# Ajay Kumar Singh v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-19
- **Case number:** Writ A No. 1939 of 2024
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-singh-v-state-of-u-p-ors-51762
- **Pages:** 7

## Headnote

C.S.C.,
Akhilesh
Kumar
Srivastava,
Parmatma Prasad Singh, Rakesh Kumar
Srivastava, Rakesh Mishra
4 All. Ajay Kumar Singh Vs. State of U.P. & Ors.
237
A. Service Law - U.P. St. Universities Act,
1973 - Section 68 - Constitutional Law -
Article 226 - Alternative Remedy - Writ Petition
- Maintainability - Petitioner challenged Vice
Chancellor's order dated 11.10.2023 refusing
appointment as Chairman/Convener of Board of
Studies on rotation basis - Respondent contended
that alternative statutory remedy available under
Section 68 - Held, writ petition not maintainable
due to efficacious alternative remedy under
Section 68 of the Act, 1973 - No exceptional
circumstances (e.g., violation of fundamental
rights, principles of natural justice, lack of
jurisdiction, or challenge to vires of Act)
established to invoke writ jurisdiction - Petitioner
relegated to exhaust statutory remedy - Whirlpool
Corporation Vs Registrar of Trade Marks and
Radha Krishna Industries Vs St. of Himachal
Pradesh relied upon. (Para 16-22, 25)

Writ petition dismissed.

List of Cases cited:

## Text

236 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Leave Granted.

3. Since the Appellants have
served as per the interim order, obviously
they have to be paid the salary for the period
they have rendered their services. Nonpayment of salary to them for the period they
have served under the interim order or
otherwise would tantamount to taking begar
from them, which is prohibited Under Article
23 of the Constitution of India.

4. Therefore, we direct that the
Appellants shall be entitled to salary for
the period they have rendered their
services. The salary, if not paid, shall be
paid to the Appellants within four weeks
from today.

5. It is made clear that if the
Appellants have been paid the salary for the
aforesaid period, the same shall not be
recovered from them.

6. In view of the aforesaid
directions, the appeal is disposed of. "

29. The Share/Matching Grant of the
Government of India and State Governments
is provided in Clause 3.1 of the Guidelines,
2010, which is quoted hereinbelow:-

"3.1:- Considering the need for
MPHW(Male)
for
the
disease
control
programs, the Government of India decided
to provide financial assistance to states for
contractual remuneration of the MPHW
(Male) at 53,544 PHCs in 235 high focus
districts for a period of three years. The
remuneration will be paid at a rate of Rs.
6000 per MPHW per month. The expenditure
will be on sharing basis, 85% by NRHM and
15% by State Governments for the first year
followed by 75% and 25% for the second
year and 65% and 35% for the third years."

30. Clause 3.1 of the Guidelines, 2010
provides for matching grant by the the
Government of India and State Government
for the purpose of payment salaries to the
MPHWs (Male).

31. As per Clause 3.1 of the Guidelines,
2010, the Government of India and the State
of U.P. is directed to ensure the payment to the
petitioners who were working till the period
they had completed three years of service from
the date of their initial appointment within a
period of two months from the date of certified
copy of this order is served.

32. For the period beyond three years
petitioners shall be paid by the State
Government till they had actually worked .
The State Government shall make payment
within a period of two months from the date
of production of certified copy of this order
after verification of 394 MPHWs (Male) of
their actual working.

33. In view of the facts, circumstances
and discussions made hereinabove, the
present petition is allowed.
----------
(2024) 4 ILRA 236
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 1939 of 2024

Ajay Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anagh Shukla, Shweta Shukla

Counsel for the Respondents:
C.S.C.,
Akhilesh
Kumar
Srivastava,
Parmatma Prasad Singh, Rakesh Kumar
Srivastava, Rakesh Mishra
4 All. Ajay Kumar Singh Vs. State of U.P. & Ors.
237
A. Service Law - U.P. St. Universities Act,
1973 - Section 68 - Constitutional Law -
Article 226 - Alternative Remedy - Writ Petition
- Maintainability - Petitioner challenged Vice
Chancellor's order dated 11.10.2023 refusing
appointment as Chairman/Convener of Board of
Studies on rotation basis - Respondent contended
that alternative statutory remedy available under
Section 68 - Held, writ petition not maintainable
due to efficacious alternative remedy under
Section 68 of the Act, 1973 - No exceptional
circumstances (e.g., violation of fundamental
rights, principles of natural justice, lack of
jurisdiction, or challenge to vires of Act)
established to invoke writ jurisdiction - Petitioner
relegated to exhaust statutory remedy - Whirlpool
Corporation Vs Registrar of Trade Marks and
Radha Krishna Industries Vs St. of Himachal
Pradesh relied upon. (Para 16-22, 25)

Writ petition dismissed.

List of Cases cited:

1. Committee of Management DAV Post Graduate
College Vs St. of U.P.; 2018 LawSuit(All) 2163

2. Managing Committee Shibli National PG College
Vs St. of U.P.; Writ-A No. 44972 of 2013, dated
30.09.2013

3. Committee of Management, Raja Balwant Singh
College Vs St. of U.P.; 2016 (1) ADJ 781

4. Dr. Smt. Abha Sharma Vs St. of U.P.; Special
Appeal No. 64 of 2020, dated 27.01.2020

5. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai; (1998) 8 SCC 1

6. Radha Krishna Industries Vs St. of Himachal
Pradesh; (2021) 6 SCC 771

7. South Indian Bank Ltd. Vs Naveen Mathew
Philip; (2023) SCC OnLine SC 435

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Vakalatnama filed by Shri
Parmatma Pd. Singh, Advocate on behalf
of opposite party no. 5, is taken on record.

2. Heard Ms. Shweta Shukla, learned
counsel for the petitioner, Sri Akhilesh
Kumar Srivastava, learned counsel for
opposite party nos. 2 and 3, Sri Shailendra
Kumar Singh, learned Chief Standing
Counsel for State, Sri Rakesh Kumar
Srivastava, learned counsel for opposite
party no. 4 and Sri Parmatma Pd. Singh,
learned counsel for opposite party no. 5.

3. Notices to opposite party no. 4 is
hereby dispensed with.

4. At the very out-set, Shri Akhilesh
Kumar
Srivastav,
learned
counsel
appearing for the respondent-University
has raised preliminary objection that the
order dated 11th October 2023 passed by
the Vice Chancellor is revisable under
Section 68 of the UP State Universities Act
1973 (hereinafter referred as 'Act, 1973').
He added that the Vice Chancellor has
taken decision vide order dated 11th
October 2023 and refuted the claim of the
petitioner
while
observing
that
the
petitioner was promoted on the post of
Associate Professor on 14th May 2022, and
therefore, he is not entitled to be posted on
rotation basis, as the same can be between
the Professors, who can be inducted as
Chairman/Convener of Board of Studies.

5. Adding his arguments, he submits
that the petitioner has an efficacious
alternative statutory remedy before the
Chancellor, against the order passed by the
Vice Chancellor and therefore, the present
writ petition is not maintainable on this
ground alone.

6. In support of his contention, he has
placed reliance on a judgement reported in
2018 LawSuit(All) 2163, Committee of
Management DAV Post Graduate College
and Another Vs. State of U.P. and Others
238 INDIAN LAW REPORTS ALLAHABAD SERIES
and has referred paragraph 13, 14 and 15 of
the abovesaid judgement.

7. Paragraph 13, 14 and 15 of the
abovesaid
judgement
is
quoted
hereinunder:-

"13. The question as to whether
the order of the Vice Chancellor impugned
herein is sustainable or not, could very well
be examined in Reference under Section 68
of the Act. It is noteworthy that the
petitioner Committee claims that meeting
dated 25.9.2016 in which it was elected
was called by Narendra Kumar Srivastava,
Secretary
of
the
parent
society.
Concededly, the person initially elected as
Secretary of the parent society was Vinod
Kumar Srivastava. The petitioners claim
that he was expelled from the post of
Secretary
of
the
parent
society
on
25.3.2016 and his membership was also
ceased. So far, there is no adjudication by
any authority upholding expulsion of Vinod
Kumar Srivastava. The said dispute is
pending before the Prescribed Authority
under Section 25 (1) of the Act. In order to
be successful, the petitioners have also to
establish that Vinod Kumar Srivastava was
validly expelled and in his place, Narendra
Kumar Srivastava was validly elected. In
the opinion of the Court, these issues,
which require appreciation of evidence,
should be permitted to be examined in
Reference under Section 68 of the Act.

14. The remedy of Reference
under Section 68 is an efficacious remedy,
inasmuch
as
the
Chancellor,
while
exercising
power
under
Section
68
pertaining to a dispute relating to election,
is also invested with specific power to pass
such orders of stay as he thinks just and
expedient. A Division Bench of this Court
in Writ-A No.44972 of 2013 Managing
Committee Shibli National PG College Vs.
State of U.P. and others by judgement
dated 30.9.2013 declined to entertain a
writ petition holding that the remedy under
Section 68 by way of Reference is a
comprehensive remedy where questions of
fact as well as law both could be raised and
decided.
Again,
in
Committee
of
Management, Raja Balwant Singh College
and others Vs. State of U.P. and others,
2016 (1) ADJ 781, I have taken the same
view and declined to entertain the writ
petition relegating the parties to invoke the
remedy of Reference under Section 68 of
the Act.

15. No doubt, there is no absolute
bar in entertaining a writ petition under
Article 226 even though an alternative
remedy is available under the Statute, but
having
regard
to
the
facts
and
circumstances of the instant case, this
Court is of the considered opinion that it is
a fit case where the petitioners should be
relegated to avail the alternative statutory
remedy under Section 68 of the Act."

8. Referring the aforesaid, he submits
that the Court, while dealing with the legal
question has held that there is no absolute
bar in entertaining a Writ under Article 226
of the Constitution of India. Concluding his
arguments, he submits that since the
petitioner did not refer any reason that why
this Court should invoke it's discretion to
entertain this petition, even the alternative
statutory remedy is available to him.
Therefore, submission is that this petition is
liable to be dismissed on this ground alone.

9. Shri Parmatma Pd. Singh, learned
counsel appearing for the opposite no. 5
has also opted the aforesaid arguments of
counsel for the respondent-University and
added that several litigation are instituted
by the petitioner, though he is not entitled
to be appointed, as the claim which is being
4 All. Ajay Kumar Singh Vs. State of U.P. & Ors.
239
raised by the petitioner is premature
according to his present post.

10. On the other hand, the learned
counsel for the petitioner has vehemently
opposed the contentions aforesaid and
submits, that the order impugned dated
11th October 2023 has been passed after
an order was passed by this Court on 4th
August 2023 in Writ-A No. 5631 of 2023.
She further added that there can be no
absolute bar, in entertaining the writ
petition
under
article
226
of
the
Constitution of India and therefore the
petition is maintainable. She also added
that
the
facts
which
are
narrated/contended
by
the
learned
counsel for the opposite parties, are not
correct as the petitioner is entitled for his
appointment on rotation basis.

11. The learned counsel for the
petitioner has also placed reliance on a
judgement, rendered in Special Appeal
No. 64 of 2020, Dr. Smt. Abha Sharma,
Associate
Professor,
Department
of
English, Agra College, Agra Vs. State of
U.P. and Others passed by this Court and
has referred paragraph 9 of the abovesaid
judgement.

12. Paragraph 9 of the judgement is
quoted hereinunder:-

"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."

13. Placing reliance on the aforesaid,
she submits that the Division Bench of this
Court has held that in case, any order is
passed by the Vice Chancellor and even if
the remedy under Section 68 of the Act
1973 is available, that could not be a bar
and therefore, submission is that the writ
petition is maintainable.

14. Considering the submissions of
the learned counsel for the parties and after
perusal of the material placed on record, it
transpires that the petitioner is aggrieved as
he is not being considered to be appointed
following the roster, as prescribed under
the law, though it is contended from other
side that the petitioner is appointed in year
2022 on the post of Associate Professor and
as such he is not even entitled for the same.

15. Needless to say that there is an
efficacious
alternative
remedy
under
Section 68 of the Act, 1973, which clearly
speaks about the provision with respect to
challenge to the order passed by the Vice
Chancellor and the same is also applicable
in the present case as the Vice Chancellor
has rejected the claim of the petitioner
while observing that he is not entitled to be
considered for his appointment while
applying the roster as he is appointed on
14th May 2022 on the post of Associate
Professor.

16. Time and again it has been settled
that if there is efficacious and alternative
statutory remedy available, the interference
would
be
under
the
exceptional
circumstances. It's self imposed restriction
and thus, it's rule of discretion not
compulsion.
240 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Hon'ble Supreme Court has
settled this issue and the view of the Apex
Court remains consistent starting from the
judgement and order rendered in Case of
Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and Others,
reported in (1998) 8 SCC 1.

18. In the aforesaid case, it has
specifically been held by the Supreme
Court that a Writ Court would be justified
entertaining a writ petition despite the
alternative remedy is not availed, provided
that: (i) where the writ petition seeks
enforcement of any of the fundamental
rights; (ii) where there is violation of
principles of natural justice; (iii) where the
order or the proceedings are wholly without
jurisdiction; or (iv) where the vires of an
Act is under challenge.

19. The law laid down by the
Supreme Court in case of Radha Krishna
Industries v. State of Himachal Pradesh,
reported in (2021) 6 SCC 771, also adopts
the same view as is held in case of
Whirlpool Corporation (supra).

20. Paragraphs 25, 26 and 27 of the
abovesaid
judgement
are
quoted
hereinunder:-

"25. In this background, it
becomes necessary for this Court, to dwell
on the "rule of alternate remedy" and its
judicial
exposition.
In
Whirlpool
Corporation v Registrar of Trademarks,
Mumbai21, a two judge Bench of this Court
after reviewing the case law on this point,
noted:

"14.
The
power
to
issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari
for the enforcement of any of the
Fundamental Rights contained in Part III
of the Constitution but also for "any other
purpose".

15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to entertain a
writ petition. But the High Court has
imposed upon itself certain restrictions one
of which is that if an effective and
efficacious remedy is available, the High
Court would not normally exercise its
jurisdiction. But the alternative remedy has
been consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or where
there has been a violation of the principle
of natural justice or where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There
is a plethora of case-law on this point but
to cut down this circle of forensic
whirlpool, we would rely on" some old
decisions of the evolutionary era of the
constitutional law as they still hold the
field."
(emphasis supplied)

26. Following the dictum of this
Court in Whirlpool (supra), in Harbanslal
Sahnia v Indian Oil Corpn. Ltd.22, this
court noted that

"7. So far as the view taken by the
High Court that the remedy by way of
recourse
to
arbitration
clause
was
available to the appellants and therefore
the writ petition filed by the appellants was
liable to be dismissed is concerned, suffice
it to observe that the rule of exclusion of
writ jurisdiction by availability of an
4 All. Ajay Kumar Singh Vs. State of U.P. & Ors.
241
alternative remedy is a rule of discretion
and not one of compulsion. In an
appropriate case, in spite of availability of
the alternative remedy, the High Court may
still exercise its writ jurisdiction in at least
three contingencies: (i) where the writ
petition seeks enforcement of any of the
fundamental rights; (ii) where there is
failure of principles of natural justice; or
(iii) where the orders or proceedings are
wholly without jurisdiction or the vires of
an Act is challenged. (See Whirlpool
Corpn. v. Registrar of Trade Marks
[(1998) 8 SCC 1] .) The present case
attracts applicability of the first two
contingencies. Moreover, as noted, the
appellants' dealership, which is their
bread and butter, came to be terminated
for an irrelevant and non-existent cause.
In such circumstances, we feel that the
appellants should have been allowed
relief by the High Court itself instead of
driving them to the need of initiating
arbitration proceedings."
(emphasis supplied)

27. The principles of law which
emerge are that :

(i) The power under Article 226
of the Constitution to issue writs can be
exercised not only for the enforcement of
fundamental rights, but for any other
purpose as well;

(ii) The High Court has the
discretion not to entertain a writ petition.
One of the restrictions placed on the
power of the High Court is where an
effective alternate remedy is available to
the aggrieved person;

(iii) Exceptions to the rule of
alternate remedy arise where (a) the writ
petition
has
been
filed
for
the
enforcement of a fundamental right
protected by Part III of the Constitution;
(b) there has been a violation of the
principles of natural justice; (c) the order
or
proceedings
are
wholly
without
jurisdiction; or (d) the vires of a legislation
is challenged;

(iv) An alternate remedy by itself
does not divest the High Court of its
powers
under
Article
226
of
the
Constitution in an appropriate case
though ordinarily, a writ petition should
not be entertained when an efficacious
alternate remedy is provided by law;

(v) When a right is created by a
statute,
which
itself
prescribes
the
remedy or procedure for enforcing the
right or liability, resort must be had to
that particular statutory remedy before
invoking the discretionary remedy under
Article 226 of the Constitution. This rule
of exhaustion of statutory remedies is a
rule
of
policy,
convenience
and
discretion; and

(vi) In cases where there are
disputed questions of fact, the High Court
may decide to decline jurisdiction in a
writ petition. However, if the High Court
is objectively of the view that the nature
of the controversy requires the exercise
of its writ jurisdiction, such a view would
not readily be interfered with."

21. This view has also been adopted
by the Apex Court in judgement and
order rendered in case of South Indian
Bank Ltd. and Others Vs. Naveen
Mathew Philip and Another reported in
(2023) SCC OnLine SC 435 and has held
that the Apex Court is conscious enough
of the fact that powers conferred under
Article 226 of Constitution of India are
rather wide but are required to be
exercised
only
in
extraordinary
circumstances.

22. Thus, it has been a settled view
of the Apex Court that an alternative
remedy is not an absolute bar in an
242 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate case but ordinarily a writ
petition should not be entertained when an
efficacious alternative remedy is provided
under law.

23. From the above said principles,
laid down by the Apex Court, the present
matter is not an appropriate case,
wherein, this Court could find objectively
that the nature of the controversy requires
the exercise of writ jurisdiction.

24. Sheet anchor of the argument of
counsel
for
the
petitioner
is
the
judgement and order dated 27.01.2020, is
with respect to peculiar facts and
circumstances of the case concerned,
which is apparent from the starting words
of paragraph 9 of the judgement itself,
and further the counsel for the petitioner
has also failed to substantiate that those
facts are identical to the facts of present
matter and therefore, the benefit of the
judgement and order dated 27th January
2020 is not available to the petitioner.

25. Considering the abovesaid facts
and circumstances, this Court is of
considered opinion that under the facts
and circumstances of the present matter,
this is a fit case, where the petitioner
should be relegated to exhaust the
alternative remedy under Section 68 of the
Act, 1973.

26. Consequently, the writ petition is
hereby dismissed on the ground of
maintainability.

27. However, it is open for the
petitioner to approach the appropriate
forum, in accordance with law.

28. No order as to costs.
----------
(2024) 4 ILRA 242
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 2511 of 2024

Kavita Giri ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Asit Srivastava

Counsel for the Respondents:
A.S.G.I., Anand Kumar Singh, Krishna Lal
Yadav, Lalit Shukla

A. Service Law - Bank of Baroda Transfer
Policy - Clause 8.9 - Transfer of Lady
Officers - Petitioner challenged transfer order
dated
04.11.2023
and
rejection
of
representation dated 09.06.2023 as violative of
Transfer Policy and court orders - Held, transfer
from Kanpur Dehat Region to Kanpur Metro
Region within the same zone not covered under
Clause 8.9.4 and 8.9.5, which apply only to
inter-zonal
transfers
-
Three-year
tenure
protection for lady officers applies only to interzonal transfers on request - Impugned order
not violative of Transfer Policy or prior court
orders in Special Appeal No. 347 of 2023 and
Writ A No. 7948 of 2023 - Transfer policy to be
read as a whole, and transfer within zone does
not attract special provisions for lady officers -
Nazir Ahmad Vs King Emperor relied upon.
(Para 16-19, 23-25)

Writ petition dismissed.

List of Cases cited:

1. Nazir Ahmad Vs King Emperor; 1936 SCC
Online PC 41

(Delivered by Hon'ble Shree Prakash
Singh, J.)