# Dr. Shakuntala Mishra National Rehabilitation University & Ors v. Dr. Rajendra Kumar Srivastava & Anr

- **Citation:** (2024) 2 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-30
- **Case number:** Special Appeal No. 332 of 2023
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-shakuntala-mishra-national-rehabilitation-university-ors-v-dr-rajendra-kumar-51460
- **Pages:** 28

## Headnote

Service Law - Dr. Shakuntala Mishra
National Rehabilitation University (For
Differently
Abled)
U.P.
Act,
2009
-
Sections 25 & 44 - U.P. Government
Servants (Discipline and Appeal) Rules,
1999 - Termination of Services - Appellants
challenged
Single
Judge's
order
dated
08.05.2023
and
24.05.2023
quashing
termination/cancellation
of
respondents'
appointments for lack of qualifications - Held,
termination proceedings violated principles of
natural justice and statutory provisions -
University's adoption of Rules, 1999 mandated
compliance, but no charge-sheet issued, no full
enquiry report provided, and hearing by one
committee with decision by another vitiated
process - Whirlpool Corporation Vs Registrar of
Trade Marks, Harbanslal Sahnia Vs Indian Oil
Corpn. Ltd., and Godrej Sara Lee Ltd. Vs Excise
and Taxation Officer followed, affirming writ
maintainability despite alternative remedies due
to natural justice violations - Section 44
protects selections despite procedural defects in
committee constitution - Long service (7-8
672 INDIAN LAW REPORTS ALLAHABAD SERIES
years) without fraud or misrepresentation
precludes cancellation, per Mohd. Abul Lash Vs
St. of U.P., Nahar Singh Vs St. of U.P., and
Sivanandan C.T. Vs High Court of Kerala -
Termination tantamount to
misconduct penalty,
requiring adherence to Rules, 1999 and Statute 9.07 -
Respondents' qualifications (e.g., M.Sc. equivalence to
MCA, API scores, experience) upheld as sufficient - Back
wages justified per Pradeep Vs Manganese Ore (India)
Ltd. due to illegal termination without fault. (Para 16-59)

Special Appeals dismissed.

List of Cases Cited:

## Text

_Characters 0–39,868 of 98,796. This is a partial read: ask again with offset=39868 for what follows._

2 All. Dr. Shakuntala Mishra National Rehabilitation University & Ors. Vs. Dr. Rajendra
 Kumar Srivastava & Anr.
671
enhance transparency, accountability, and
responsibility within police force.

28. Reverting back to the prayer made
in (i) Writ-A No. 265 of 2024, it is directed
that the impugned relieving order dated
14.11.2023
shall
remain
stayed
till
30.4.2024, and the impact of the impugned
order
shall
be
revived
immediately
thereafter. The department shall be at
liberty to proceed further in conformity
with the transfer order dated 5.6.2023. The
petitioners are further directed to report to
the new place of posting as delineated in
the transfer order within a week from
31.4.2024; and also in (ii) Writ-A No. 268
of 2024, it is directed that the impugned
relieving
order
dated
6.11.2023
and
15.12.2023 arising out of transfer order
dated 27.5.2023 and 4.11.2023 shall also
remain stayed till 30.4.2024, and the impact
of the impugned order shall be revived
immediately thereafter. The department
shall be at liberty to proceed further in
conformity with the transfer order dated
27.5.2023 and 4.11.2023. The petitioners
are further directed to report to the new
place of posting as delineated in the
transfer orders within a week from
31.4.2024.

29. The Registrar (Compliance) is
directed to send a copy of this order to the
Director General of Police for necessary
compliance
and
take
note
of
the
observations deliberated herein above. A
copy of this order will also be sent to the
Chief
Secretary,
UP,
for
effective
supervision and compliance.

30. The present petitions stand
disposed of in the aforesaid terms.
----------
(2024) 2 ILRA 671
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI,
J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 332 of 2023
Connected with
Special Appeal No. 330 of 2023
And other connected cases

Dr.
Shakuntala
Mishra
National
Rehabilitation University & Ors.
 ...Appellants
Versus
Dr. Rajendra Kumar Srivastava & Anr.
 ...Respondents

Counsel for the Appellants:
Atul Kumar Dwivedi

Counsel for the Respondents:
Vijay Dixit, C.S.C.

Service Law - Dr. Shakuntala Mishra
National Rehabilitation University (For
Differently
Abled)
U.P.
Act,
2009
-
Sections 25 & 44 - U.P. Government
Servants (Discipline and Appeal) Rules,
1999 - Termination of Services - Appellants
challenged
Single
Judge's
order
dated
08.05.2023
and
24.05.2023
quashing
termination/cancellation
of
respondents'
appointments for lack of qualifications - Held,
termination proceedings violated principles of
natural justice and statutory provisions -
University's adoption of Rules, 1999 mandated
compliance, but no charge-sheet issued, no full
enquiry report provided, and hearing by one
committee with decision by another vitiated
process - Whirlpool Corporation Vs Registrar of
Trade Marks, Harbanslal Sahnia Vs Indian Oil
Corpn. Ltd., and Godrej Sara Lee Ltd. Vs Excise
and Taxation Officer followed, affirming writ
maintainability despite alternative remedies due
to natural justice violations - Section 44
protects selections despite procedural defects in
committee constitution - Long service (7-8
672 INDIAN LAW REPORTS ALLAHABAD SERIES
years) without fraud or misrepresentation
precludes cancellation, per Mohd. Abul Lash Vs
St. of U.P., Nahar Singh Vs St. of U.P., and
Sivanandan C.T. Vs High Court of Kerala -
Termination tantamount to
misconduct penalty,
requiring adherence to Rules, 1999 and Statute 9.07 -
Respondents' qualifications (e.g., M.Sc. equivalence to
MCA, API scores, experience) upheld as sufficient - Back
wages justified per Pradeep Vs Manganese Ore (India)
Ltd. due to illegal termination without fault. (Para 16-59)

Special Appeals dismissed.

List of Cases Cited:

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

2. Harbanslal Sahnia Vs Indian Oil Corpn. Ltd.; (2003) 2
SCC 107

3. Godrej Sara Lee Ltd. Vs Excise and Taxation Officer;
2023 SCC OnLine SC 95

4. Union Public Service Commission Vs M. Sathiya Priya;
(2018) 15 SCC 796

5. M.VS Thimmaiah Vs Union Public Service
Commission; (2008) 2 SCC 119

6. Mohd. Abul Lash Vs St. of U.P.; Civil Appeal No. 37 of
2020, decided on 07.01.2020

7. Nahar Singh Vs St. of U.P.; Civil Appeal No. 3904 of
2013, decided on 14.07.2017

8. Savitri Devi Vs St. of U.P.; SLP (Civil) No. 14907/2009,
decided on 07.01.2020

9. Tara Prasad Mishra Vs St. of U.P.; 1990 Vol. II
UPLBEC 905

10. Nisha Devi Vs St. of H.P.; (2014) 16 SCC 392

11. Mahipal Singh Tomar Vs St. of U.P.; (2013) 16 SCC
771

12. M.P. St. Cooperative Bank Ltd. Vs Nanuram Yadav;
(2007) 8 SCC 264

13. St. of Bihar Vs Lal Krishna Advani; (2008) 8 SCC 361

14. Deepak Anand Patil Vs St. of Mah.; 2023 SCC OnLine
SC 34

15. Kuntest Gupta Vs Management of Hindu Kanya
Mahavidhyalaya; (1987) 4 SCC 525

16. Bhavnagar University Vs Palitana Sugar Mill (Pvt.)
Ltd.; (2003) 2 SCC 111

17. Tungabhadra Industries Ltd. Vs Government of
Andhra Pradesh; AIR 1964 SC 1372

18. Dr. M.S. Mudhole Vs S.D. Halegkar; (1993) 3 SCC
591

19. Rekha Chaturvedi Vs University of Rajasthan; 1993
Supp (3) SCC 168

20. Gujarat St. Dy. Executive Engineers Association Vs
St. of Gujarat; (1994) Supp (2) SCC 591

21. Buddhi Nath Chaudhary Vs Abahi Kumar; (2001) 3
SCC 328

22. Girjesh Shrivastava Vs St. of M.P.; (2010) 10 SCC
707

23. Vikas Pratap Singh Vs St. of Chhattisgarh; (2013) 14
SCC 494

24. Md. Zamil Ahmed Vs St. of Bihar; (2016) 12 SCC 342

25. Sivanandan C.T. Vs High Court of Kerala; 2023 SCC
OnLine SC 994

26. Pradeep Vs Manganese Ore (India) Ltd.; (2022) 3
SCC 683

27. K.C. Joshi Vs U.O.I.; (1985) 3 SCC 153

28. Samsher Singh Vs St. of Pun.; (1974) 2 SCC 831

29. Anoop Jaiswal Vs Government of India; (1984) 2
SCC 369

30. Basavaiah (Dr.) Vs Dr. H.L. Ramesh; (2010)
8 SCC 372

31. Saurabh Pal Vs The Chancellor, Veer
Bahadur; Civil Appeal No. 596 of 2008, decided
on 22.01.2008
2 All. Dr. Shakuntala Mishra National Rehabilitation University & Ors. Vs. Dr. Rajendra
 Kumar Srivastava & Anr.
673
(Delivered by Hon'ble Om Prakash Shukla,
J.)

A. INTRODUCTION

(1) The present bunch of Special
Appeals have been filed under Chapter VIII
Rule 5 of the Allahabad High Court Rules,
1952. The following five Special Appeals
have been filed against a common
judgment/order dated 08.05.2023 passed by
the learned Single Judge in Writ-A Nos.
4293 of 2022, 4316 of 2022, 4310 of 2022,
4307 of 2022 and 4312 of 2022:-

(i) Special Appeal No. 332/2023
(Dr.
Shakuntala
Mishra
National
rehabilitation University & others V/s Dr.
Rajendra Kumar Srivastava & Anr.) ;

(ii) Special Appeal No. 333/2023
(Dr.
Shakuntala
Mishra
National
rehabilitation University & others Vs. Dr.
Adya Shakti Rai & Others);

(iii)
Special
Appeal
No.
334/2023 (Dr. Shakuntala Mishra National
rehabilitation University & others V/s
Avanish Chandra Mishra & Ors);

(iv)
Special
Appeal
No.
335/2023 (Dr. Shakuntala Mishra National
rehabilitation University & others V/s
Vipin Kumar Pandey & Ors); and

(v) Special Appeal No. 336/2023
(Dr.
Shakuntala
Mishra
National
rehabilitation University & others V/s
Mrutyunjaya Mishra & Ors).

However, Special Appeal No. 330 of
2023 (Dr. Shakuntala Mishra National
rehabilitation University & others Vs. Alok
Mishra & Anr.) although has been filed
against judgment/order dated 24.05.2023
passed by the learned Single Judge in WritA No.7046 of 2022, but on close scrutiny
of
the
impugned
judgment/order
24.05.2023, subject matter of Special
Appeal No. 330 of 2023 would reveal that
the
impugned
judgment/order
daed
24.05.2023 is wholly premised and based
on the common judgment/order dated
08.03.2023 (supra). Thus, all these Special
Appeals have been taken up for hearing
together and are being disposed of by this
common order as the issues involved are
common except to the aspect pertaining to
their respective educational qualifications.

(2) The precincts of these special
appeals lie in the challenge laid by these
individuals to the termination/cancellation
of their services/selection vide order dated
06.07.2022 by the appellants/University on
common grounds of lack of essential
qualification at the time of their selection
with
regard
to
their
educational
qualifications and/or experience in the year
2014.

B. FACTUAL MATRIX

(3) The facts delineated from the
records would reveal that all the individual
respondents are teachers having been
selected in the Dr. Shakuntala Mishra
National Rehabilitation University pursuant
to the advertisement dated 17.02.2014.
Apparently, these individuals/respondents
submitted relevant documents with regard
to their qualifications and experiences and
also
appeared
before
a
Screening
Committee, and subsequently appeared in
the
interview
before
the
Selection
Committee
which
recommended
their
candidature
for
appointment.
The
recommendations, thereafter, were placed
before the Executive Council of the
University, pursuant to which they were
appointed and after being in probation,
their services were confirmed and ever
since then these private respondents have
been continuing to render their services
674 INDIAN LAW REPORTS ALLAHABAD SERIES
until their selections were cancelled by
means of an order, which was impugned by
these private respondents in the respective
writ petitions filed before the learned
Single Judge.

(4)

According
to
the
appellants/University,
the
orders
of
cancellation of selection have been passed
by the Vice- Chancellor of Dr. Shakuntala
Mishra National Rehabilitation University,
Lucknow primarily for the reason that in
the meeting of the General Body of the
University, an enquiry was instituted
against the previous Vice-Chancellor Dr
Nishith Rai and all the charges against him
were proved and he was found guilty of
administrative and financial irregularities.
As
a
consequence
of
that,
the
appellants/University after seeking legal
opinion, decided that all the appointments
made during Dr. Nishith Rai's tenure
would be enquired on a case-to-case basis.
It
seems
thereafter
the
Executive
Committee of the University had appointed
a three-member Committee, which has
submitted its report, where it has been
found that the appointments of the private
respondents were made without following
the rules of qualification, reservation etc.
and most importantly, no approval was
sought from the Visitor for appointment of
the panel of experts and that these people
were appointed despite the fact that they
did not have the requisite qualification,
experience, API score etc. which was
contrary to the rules on the date of their
selection.

(5) It has been further averred that the
Executive Council in its 35th meeting held
on 07.10.2021 decided to constitute a two
member committee consisting of two
retired Judges of the Hon'ble High Court to
enquire into all the appointments made by
the erstwhile Vice-Chancellor. The enquiry
was conducted by the said Committee, who
submitted their report, which was placed
before the Executive Council and was duly
approved in its 38th meeting. Pursuant to
the aforesaid acceptance of the report, show
cause
notice
was
given
to
the
individuals/respondents
seeking
their
response. The response was placed before
another committee consisting of a retired
Hon'ble High Court Judge and subject
specialist. The Committee, thereafter, made
its recommendations on 9.6.2022 to the
University, which was accepted by the
Executive Committee. The Committee
concluded that these private respondents
apparently did not fulfil the prescribed
qualifications
on
the
date
of
the
advertisement and hence their services
were cancelled/ terminated. It was further
provided by the University that on
considering that all the private respondents
have worked for a period of 6-7 years, they
would be eligible to apply in the fresh
advertisement which would be issued and
in case they are selected, their pay and
allowances would be protected. The said
individuals
termination/cancellation
of
selection letter was interdicted by the
respondents/writ petitioners before the
learned Single Judge, which passed a very
detailed impugned judgment, discussing
every aspect of the matter and concluded
that the cancellation/ termination of these
private
respondents
by
the
appellants/University was wrong and as
such
after
quashing
the
individual
impugned order of termination, also
directed for reinstatement along with all
consequential
benefits
including
back
wages from the date of termination vide a
common impugned judgment/order dated
08.03.2023 (supra). It is this common
judgment/order daed 08.03.2023 and of
course,
the
judgment/order
dated
2 All. Dr. Shakuntala Mishra National Rehabilitation University & Ors. Vs. Dr. Rajendra
 Kumar Srivastava & Anr.
675
24.05.2023 (supra) passed in the sixth
special appeal, which are subject matter of
these
appeals.

(6) Heard Shri Sudeep Seth,
learned Senior Advocate assisted by Shri
Atul Kumar Dwivedi, representing the
appellants/ University, Shri Sandeep Dixit,
learned Senior Advocate assisted by Shri
Vijay Dixit, representing the private
respondent in Special Appeal No. 332 of
2023, Shri Gaurav Mehrotra, learned
Counsel
representing
the
private
respondent in Special Appeal Nos.330,
333, 334 and 336 of 2023 and Dr. L.P.
Mishra, learned Counsel representing the
private respondent in Special Appeal No.
335 of 2023 as well as learned Standing
Counsel representing the State.

C. ARGUMENTS

(7) The impugned judgment has been
attacked by the learned Senior Counsel Mr.
Sudeep
Seth
on
multiple
grounds.
According to him, writ petition was not
maintainable on the ground of availability
of suitable efficacious remedy. It has been
argued that the learned Single Judge has
returned an incorrect finding/reasoning
relating to (i) the applicability of U.P
Government
Servants
(Discipline
and
Appeal) Rules, 1999 (hereinafter referred
to as "Rules, 1999"), (ii) decision making
process of the University on the pretext that
decision was taken by the Executive
Council, whereas hearing was afforded by
another Committee, (iii) constitution of
selection committee to be in violation of
Section 25 of the Dr. Shakuntala Mishra
National Rehabilitation University (For
Differently Abled) Uttar Pradesh Act, 2009
(hereinafter referred to as "Act, 2009"),
(iv) selection of the writ petitioners having
been cancelled as they lacked essential
qualification required in the advertisement,
(v) merely continuation in service for 6 to 7
years would not mean that the writ
petitioners fulfilled the mandatory essential
qualification, (vi) contradictory stand of
entertaining the writ petition although
accepting the availability of statutory
remedy before the Visitor, (vii) finding
returned in the impugned judgment relating
to lack of qualification for appointment
being a misconduct, so as to apply the
procedure as prescribed under the UP
Government
Servants
(Discipline
and
Appeal) Rules, 1999, (viii) erroneous
adjudication of the writ petition on the
ground of termination from service rather
than cancellation of their selection, (ix)
incorrectly holding that in case of illegal
selection of a candidate, charge-sheet,
evidence and names of witness are required
to be mentioned and detailed procedure of
departmental enquiry has to be followed,
(x) wrongly holding that complete enquiry
report of two members committee (retired
Judge of the Hon'ble High Court) was
required to be given and supply of extract
amounted to violation of principles of
natural justice, (xi) the petitioner having
been illegally appointed cannot be allowed
to enjoy the status of member of the staff,
so as to claim observance of the Rules,
1999 or the university statute or Article 311
of the Constitution, (xii) wrongly held that
the University enquired the legality of the
selection only to annul all actions of the
former vice chancellor and ignored that the
general Council of the university has
decided to conduct the enquiry in selection
on the case to case basis. (xiii) the
appointment of the writ petitioners being a
scam committed by the then ViceChancellor and the appointment of the writ
petitioners
being
established
as
procured/illegal, there was no question of
long period of service or absence of
676 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint. (xiv) Ignoring the settled law
that whenever any procedural defect if
found in the enquiry, liberty should be
granted to the university to remove the said
defect and either hold the fresh enquiry or
proceed from the stage of the defect, (xv)
incorrect holding in the impugned order
that the defect in selection committee as
being protected under section 44 of the Act,
2009, (xvi) non-appreciation of the fact that
lack of essential qualification prescribed in
the
advertisement
to
not
a
trivial
irregularity but a blatant one, which cannot
be allowed to perpetuated, (xvii) failing to
appreciate that not only the constitution of
selection committee was in contravention
of the statutory provisions even the writ
petitioners did not possess the minimum
qualification
prescribed
in
the
advertisement
on
the
date
of
their
application,
(xviii)
grant
of
all
consequential
benefits
including
back
wages without appreciating that since
06/07/2022 the writ petitioners have not
discharged any work in university, (xix)
finding of the learned Single Judge being
perverse on the aspect of qualification
possessed by the individual writ petitioners.

(8) Per contra, learned Counsel
representing the writ petitioner/respondent
in his erudite manner has premised his
arguments on the point that (a) a person
selected and appointed though not having
some prescribed essential qualifications
and having been allowed to continue in
service for a long period of time have
acquired such essential qualifications and
as such the selection and appointment
cannot be interfered with. To stregthen their
submissions, they relied upon the judgment of the
Apex Court rendered in Union Public Service
Commission Vs M. Sathiya Priya & Others :
(2018) 15 SCC 796, M.V. Thimmaiah &
Others Vs. Union Public Service Commission
& Others : (2008) 2 SCC 119, Mohd. Abul
Lash V/s State of U.P & Ors. (judgment dated
07.01.2020 passed in Civil Appeal No. 37 of
2020), Nahar Singh and Others V/s State of
U.P & Ors. (Judgment dated 14.07.2017 passed
in Civil Appeal No. 3904 of 2013), Savitri Devi
& Others V/s State of U.P & Others ( Judgment
dated 07.01.2020 passed in SLP (Civil) No.
14907/2009).

(9) The learned Counsel has also argued
that Visitor of the University being supreme
authority of the University in regard to its affairs
and having held that the writ petitioner/respondent
were fully eligible for appointment, the Executive
Council or any other authority of the University
could not hold otherwise. In this regard, they
relied upon the decision of the Full Bench of this
Court rendered in case of Tara Prasad Mishra
Vs. State of U.P : 1990 Vol. II UPLBEC 905.

(10) Further argument of the writ
petitioner/respondent was led by Mr. Gaurav
Mehrotra, learned Counsel representing on behalf
of the respondent in Special Appeal Nos. 330, 33,
334, 336 of 2023, who defended the impugned
order by formulating his arguments on eight
different aspects. Mr. Mehrota submitted that the
learned Single Judge was absolutely right in
holding that no opportunity of hearing was given
and the principles of natural justice was not
followed. In support of his submission, he relied
upon the decision of the Apex Court rendered in
the case of (i) Nisha Devi Vs State of
Himachal Pradesh & Others : (2014) 16
SCC 392, (ii) Mahipal Singh Tomar V/s
State of U.P & Others : (2013) 16 SCC
771, (iii) M.P State Cooperative Bank
Ltd. V/s Nanuram Yadav & Others,
(2007) 8 SCC 264.

(11) Shri Mehrotra has submitted that
any action taken in deviation of principles
of natural justice is non-est in the eyes of
law. In support of this contention, he relied
2 All. Dr. Shakuntala Mishra National Rehabilitation University & Ors. Vs. Dr. Rajendra
 Kumar Srivastava & Anr.
677
upon the judgment of the Apex Court in
State of Bihar & Others Vs. Lal Krishna
Advani : (2008) 8 SCC 361. The learned
Counsel has also submitted that an
adjudicatory body cannot take any decision
on a material unless the person against
whom it is sought to be utilized has been
apprised of it and given an opportunity to
respond. In this regard, he has relied on the
decision of the Apex Court in Deepak
Anand Patil Vs State of Maharashtra
and Others : (2023) SCC Online SC 34.

(12) Shri Mehrotra has further
stressed on the point that an authority
cannot review its own order, unless the
power of review is expressly conferred on
it by statute under which it derives its
jurisdiction. In support of this contention,
he relied upon the decision of the Apex
Court in Kuntest Gupta Vs. Management
of
Hindu
Kanya
Mahavidhyalaya,
Sitapur (U.P) and others : (1987) 4 SCC
525.

(13) The learned Counsel has
vociferously argued that availability of an
alternate remedy is not an absolute bar for
this Court to entertain a writ petition under
Article 226 of the Constitution, wherein
there is an apparent violation of principle of
natural justice. According to the learned
Counsel, in a case where the contention of
a party has not been recorded or argued
before the Court, then the appropriate
remedy would be to file a review
application before the same Court. In
support of this contention, he relied upon
the decision of the Apex Court in (i)
Bhavnagar University Vs Palitana Sugar
Mill (Pvt.) Ltd. & Anr : (2003) 2 SCC 111
and (ii) Tungabhadra Industries Ltd. Vs
Government of Andhra Pradesh, AIR
1964 SC 1372. The learned Counsel on the
proposition of that once a candidate has
been appointed and had continued for long,
even if, on question of law, the matter is
decided otherwise, the appointment of such
persons need not be annulled and should be
protected, when there is no fraud or
misrepresentation on part of the candidate.

(14) Besides the judgment already
relied by Dr. L.P. Mishra, learned Counsel,
Mr. Gaurav Mehrotra has also relied on the
decision of the Apex Court in (i) Dr. M.S
Mudhole and another Vs S.D Halegkar
and others : (1993) 3 SCC 591, (ii) Rekha
Chaturvedi V/s university of Rajasthan
and others : 1993 Supp (3) 168, (iii)
Gujrat State Dy. Executive Engineers
Association Vs State of Gujrat and
others : (1994) Supp (2) 591, (iv) Buddhi
Nath Chaudhary and others Vs Abahi
Kumar and others : (2001) 3 SCC 328,
(v) Girjesh Shrivastava Vs State of M.P
and Ors. : (2010) 10 SCC 707, (vi) Vikas
pratap Singh and Ors. Vs State of
Chhattisgarh and others, (2013) 14 SCC
494, (vii) Md. Zamil Ahmed Vs State of
Bihar and Others, (2016) 12 SCC 342 and
Constitutional
Bench
Judgment
of
Sivanandan C.T and others Vs High
Court of Kerala and others, 2023 SCC
Online SC 994.

(15) As to the proposition that in
case of illegal termination, an employee is
entitled for all the consequential benefits
including 100% of back wages, the learned
Counsel relied on the judgment of the Apex
Court in Pradeep Vs. manganese Ore
(India) Limited & others : (2022) 3 SCC
683.

D. FINDINGS & ANALYSIS

(16) Having regard to the contentions
of the parties and going through the record
available before us in the above-captioned
678 INDIAN LAW REPORTS ALLAHABAD SERIES
special appeals, this Court, at the outset, is
of the view that basically the proceedings
conducted by the appellant/ University,
which is the subject matter of these
appeals, shows its overzealousness to annul
the
decision
of
the
former
Vice-
Chancellor, which is writ large in the
manner they have acted against the private
respondent/writ petitioner, which has to be
taken with a pinch of salt. The University
ought to have been careful and circumspect
in their approach and should have followed
the procedure and norms, especially when
these private respondents have been in
service for more than 7/8 years and the
University being an educational institution
meant for higher learning which also deals
with special students who require much
more care, attention and sensitivity than
any other University. This Court does not
wish to sound sermonically, however, the
fact of the matter remains that the issues,
which are being agitated by the University
in the present special appeal, could have
been easily averted, had the appellant/
University acted without any prejudice to
the rights of these private respondents.

(17) The learned Senior Counsel
representing the appellant/ University has
trained his guns on the first ground of
availability of alternative remedy. The
learned Senior Counsel representing the
appellant has submitted that the writ
petitioner had suitable, efficacious and
statutory remedy and as such the writ
petition field by these private respondent
were not maintainable in the first place.
According to him, Rules, 1999 was
applicable on the appellant/University,
which provides for an alternative remedy of
appeal against the order of termination,
however, the writ petitioners failed to avail
the said remedy and further, these writ
petitioners had also another alternate
remedy under Section 7 of Act, 2009
before the Visitor, which was also not
availed and as such the writ itself would
had been dismissed on the ground of
availability
of
equally
efficacious
alternative remedy.

(18) On perusal of the impugned
judgment/order passed by the learned
Single Judge, what we find is that the
learned Single Judge has very extensively
dealt with the said issue raised by the
appellant/University, wherein it held at
paragraphs 10 and 11 of the impugned
judgment as under :-

"10. To consider the preliminary
objection raised by the respondent with
regard to the maintainability of the writ
petition on the ground of availability of an
efficacious alternative remedy of an appeal
under the Rules of 1999, it is undisputed
that the respondent University itself did not
adhere/follow to the Rules of 1999 while
proceeding against the petitioners. Once
the proceedings have not been initiated or
conducted in terms of Rule of 1999, by the
University itself then it does not lie upon
them to raise an objection, that the
petitioners should be required to follow the
said rule. An appeal would lie under the
Rules of 1999 when the proceedings are
conducted under the said rules. When the
proceedings are conducted under some
other provision then the petitioners cannot
be asked to follow the Rules of 1999 and
resort to the remedy of an appeal under
Rule 11 of the said rules. Learned Counsel
for
the
respondent
University
fairly
submitted that the proceedings against the
petitioners were not conducted under the
Rules of 1999, then the natural corollary
would follow, and remedy of Appeal under
the Rules of 1999 would not available to
the petitioners and hence the preliminary
2 All. Dr. Shakuntala Mishra National Rehabilitation University & Ors. Vs. Dr. Rajendra
 Kumar Srivastava & Anr.
679
objection of the respondent with regard to
availability of alternative remedy in this
regard fails.

11. Secondly, the law with regard
to maintainability of writ petition despite
existence of alternate remedy has been well
settled. The High Courts can entertain a
writ petition despite the existence of an
adequate alternative remedy where there
are allegations of breach of fundamental
rights, or violations of principles of natural
justice or that the order under challenge is
wholly without jurisdiction. In the present
case, the ground of challenge to the order
of termination is that no proper opportunity
of hearing was granted to the petitioners,
the enquiry was done in various stages by
different set of persons for which there is
no provision either in the rules or the
regulations of the University and apart
from that the entire proceedings were
vitiated by mala-fide as merely because the
petitioners have been appointed under the
regime of the erstwhile Vice Chancellor
who is alleged to have conducted certain
misconducts, as a retaliatory measure, all
the appointments made under him was
sought to be scrutinised. It is stated that
such exercise of police power is not vested
under the provisions of the act or rules of
the University, and accordingly in regard
to such facts writ petition under Article 226
would be maintainable."

(19) The learned Single Judge has
also extensively quoted paragraph 14 to 36
of the judgment of the Apex Court passed
in Whirlpool Corporation. v. Registrar
of Trade Marks : (1998) 8 SCC 1, wherein
the Apex Court taking cognizance of the
phrase "any other purpose" used in Article
226 of the constitution interpreted the
expansive horizon of the High Court in
issuance of prerogative writs and a selfimposed restriction for the issuance of the
same when an effective and efficacious
remedy is available.

(20) This court finds that the learned
Single
Judge,
after
considering
the
submission of both the parties, returned a
finding that the allegations as enumerated
in the writ petitions related to the
proceedings having been conducted against
the writ petitioner in gross violations of
principles of natural justice, as hearing was
afforded by one Committee while the
decision was taken by the Executive
Council, which the learned Single Judge
found to be contrary to all cannons of the
decision-making process. The hinge of the
observation by the learned Single Judge
appears to be based on the fact that since
the writ petitioner has been working
pursuant to the selection by a duly
constituted Selection Committee for last 6
to 7 years, the termination of the services,
on the face of it, appeared to be illegal and
arbitrary and accordingly the learned Single
Judge held that the bar of alternate remedy
does not operate against the writ petitioner.

(21) Herein, the appellant has merely
repeated the arguments on availability of
efficacious remedy and this Court does not
find any ground for arriving at a different
view as has been already held by the
learned Single Judge. Adding to the
observation as has been returned in the
impugned judgment, this Court finds that in
Harbanslal Sahnia v Indian Oil Corpn.
Ltd : (2003) 2 SCC 107, the Apex Court
held as herein under:

"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
680 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(22) Further, recently, the Apex Court
in Godrej Sara Lee Ltd. v. Excise and
Taxation
Officer-cum-Assessing
Authority & Ors., 2023 SCC OnLine SC
95, has held that availability of alternative
remedy does not operate as an absolute bar
to the maintainability of the writ petition
and that the rule which requires a party to
pursue the alternative remedy provided by
the statute is a rule of policy for
convenience and discretion rather than a
rule of law. Undoubtedly, entertainability
and maintainability of the writ petition are
two distinct concepts. The question of
entertainability is entirely within the discretion
of the High Court and writ remedy is a
discretionary remedy. Further, a writ petition,
despite being maintainable may not be
entertained by High Courts for many reasons or
relief could be refused to the Petitioner despite
setting up a sound legal point. Thus, the settled
law is where an alternate remedy is available,
the writ courts should not normally entertain a
writ petition if the Petitioner has not availed the
alternative remedy without examining whether
an exceptional case has been made out for such
entertainment.

(23) In view of the aforesaid, since this
Court is of the view that on the facts of the
present case, the private respondent/writ
petitioner has made out an exceptional case for
entertainment of his individual writ petition
before this High Court, the present objection of
the appellant relating to the maintainability of
the writ petition is over-ruled.

(24) As to the ground agitated by the
appellant/University relating to availability of
alternative remedy before the Visitor is
concerned, this court finds that the learned
Single Judge has dealt with the said objection at
paragraph 14 of the impugned judgment in the
following words :-

"14. The other objection regarding
the petitioners having an alternative remedy
before the Visitor, is also bereft of merits in as
much as the proceedings which are being
assailed before this Court have already been
subjected to the scrutiny by the Vice Chancellor
at the behest of one Dr Abhay Krishna. The
Visitor by means of order dated 11/03/2016 has
already held that the procedure adopted by the
respondent University and the constitution of
the selection committee resulting in the
appointment of the petitioners is valid. The
order of the visitor has been challenged
before this Court, and the writ petition is
pending consideration. Once the order of
the Visitor is already on record, no useful
purpose would be served by relegating the
petitioners before the Visitor on the same
issue. It is also urged that the respondent
University is itself opposed the decision of
the
Visitor,
which
itself
cannot
be
appreciated. In the present case no useful
purpose would be served by relegating the
petitioners to the remedy before the Visitor.
The objection raised by the petitioners
have force and the plea of dismissal on
ground of availability of alternative
remedy before Visitor is accordingly
rejected."

(25) This Court does not find any
argument addressed by the learned Senior
Counsel representing the appellant to be
attractive, so as to persuade this Court to
observe otherwise. Thus, this Court is not
inclined to return a finding adverse to the
conclusion arrived by the learnd Single
Judge on the issue of maintainability of the
writ petition.
2 All. Dr. Shakuntala Mishra National Rehabilitation University & Ors. Vs. Dr. Rajendra
 Kumar Srivastava & Anr.
681

(26) The next major issue raised in
the above-captioned appeals is 'as to
whether the services of the writ petitioner
has been terminated or his appointment has
been
cancelled'.
Although
the
consequential
effect
of
both
the
cancellation
or
termination
leads
to
severance of the relation between the writ
petitioner and the University, however, the
learned
Senior
Counsel
representing
appellant has tried to draw a distinction by
arguing that the said question is of great
significance as an answer to the said issue
would determine the applicability of the
provisions of Rules, 1999 on the writ
petitioner.

(27) At the very outset, this court
observes that one of the star argument
addressed by the learned Sennior Counsel
representing
the
appellants/University
against the maintainability of the writ
petition was the existence of an alternative
efficacious remedy under Rules, 1999 for
the writ petitioner in the form of appeal
before the Visitor. Having observed so, this
Court finds that the appellants/University
have
themselves
admitted
to
the
applicability of the provisions of the
aforesaid Rules, 1999 and have also
admitted that the termination order could
had been impugned in an appeal before the
Visitor by the writ petitioner, which
consequently also meant that the provisions
of the statute of the Act, 2009 ought to
have been also followed by the University
in its letter and spirit. The appellants cannot
pick and choose and say that certain
provisions are applicable and yet another
provisions are not applicable to the facts of
the case.

(28) Apparently, this Court finds that
the appellants/ University have adopted the
Rules
1999
in
its
meeting
dated
07.10.2021,
where
provision
for
termination is provided. Once the Rules,
1999 have been adopted by the University
concerned, it was bound to follow the said
Rules.
It
is
the
case
of
the
appellants/University that the Rules,1999
would be attracted only when there are
allegations of misconduct by the employee,
while in the present case the entire
selection was de hors the Rules, as the writ
petitioner did not fulfil the minimum
prescribed educational qualifications and
hence his services were dispensed with and
their
selection
cancelled.
A
further
alternative argument has been addressed by
the appellants/University to the effect that,
whether it is cancellation or termination, in
either case the writ petitioners were
afforded full opportunity of hearing before
cancelling their selection and consequently
submitted that the enquiry proceedings as
well as the order of cancellation was
correct and the impugned order is liable to
be set-aside.

(29) In the first blush, the argument of
the learned Senior Counsel representing the
appellants/University seems to be very
attractive, however, this Court finds that
the provisions regarding power to proceed
against
an
employee
of
the
appellants/University can be found in the
first statutes of 2009 enacted by the State
Government of Uttar Pradesh in exercise of
powers under sub-section (1) of Section 32
of Act, 2009 itself. Statute 9.01 is an allinclusive clause, which says "except in the
case of an appointment in a vacancy caused
by the grant of leave to a teacher for a
period not exceeding 10 months, teachers
of the university of the University shall be
appointed on a written contract in the form
set out in Appendix 'A'". Thus, in case an
appointment is made on vacancy caused by
grant of leave to a teacher, a written
682 INDIAN LAW REPORTS ALLAHABAD SERIES
contract is not needed or else it is required
mandatorily that a written contract is
entered between the University and the
teachers of the University. Apparently a
relation is established with the written
contract, which can be extinguished as per
the provisions prescribed under the said
statute only. Further, Statute 9.04 provides
that a teacher at the University may be
dismissed or removed or his services
terminated on one or more of the following
grounds, which include wilful neglect of
duty, misconduct, breach of any of the
terms
of
the
contract
of
service,
incompetence or abolition of post. Further
Statute 9.07 provides as under: -

"9.07.(1) No order dismissing,
removing or terminating the services of a
teacher of the University on any grounds
mentioned in clause (1) of statute 9.04
(except in case of a conviction for an
offence involving moral turpitude or of
abolition of post) shall be passed unless a
charge of been framed against the teacher
and communicated to him with the
statement of the grounds on which it is
proposed to take action and has been given
adequate opportunity: -

a-
of
submitting
a
written
statement of his defence;

b. of being heard in person, if he
so chooses; and

c- of calling and examining such
witnesses in his defence as he may wish

Provided
that
the
executive
Council or an officer authorised by it to
conduct the enquiry, may for sufficient
reason to be recorded in writing refused to
call any witness.

(2) the Executive Council may, at
any time ordinarily within 2 months from
the date of the enquiry officer report pass a
resolution dismissing or removing the
teacher
concerned
from
service
or
terminating the services mentioned in the
grounds of such dismissal, removal or
termination."

(30)

The
aforesaid
provisions
contemplate a dismissal, removal or
termination of service of a teacher,
however, cancellation is conspicuously
missing in the said provision.