# Dr. Smt. Abha Sharma v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Special Appeal No. 64 of 2020
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-smt-abha-sharma-v-state-of-u-p-ors-45546
- **Pages:** 5

## Headnote

A. Constitution of India - Article 226 -
confers very wide powers in the matter of
issuing writs on the High Court - remedy
of writ - absolutely discretionary in
character
-
non-entertainment
of
petitions under writ jurisdiction by the
High
Court
when
an
efficacious
alternative remedy is available - rule of
self-imposed limitation - rule of policy,
convenience and discretion rather than a
rule of law - 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
Constitution of India - can legitimately be
invoked by an aggrieved party in a fit
case
-
where
Court comes to
the
conclusion that there has been a breach
of the principles of natural justice or the
procedure required for decision has not
been adopted. (Para-6,7)

The Principal of the institution in question (i.e.
Agra College, Agra) decided the question of
seniority and the private respondent never
invoked the remedy of preferring a statutory
2 All. Dr. Smt. Abha Sharma Vs. State of U.P. & Ors.
1613
appeal
Section
68
of
State
Universities
Act,1973 and under the provisions of Clause
17.14 of the First Statutes of Dr. Bhim Rao
Ambedkar University, Agra - writ petition
dismissed purely on the ground of alternative
remedy.(Para - 1,4)

Held:- 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. (Para 9)

Impugned judgment and order set aside.
(E-7)

List of cases cited:-

## Text

1612 INDIAN LAW REPORTS ALLAHABAD SERIES
even a single significant detail may alter
the entire aspect, in deciding such cases,
one should avid the temptation to decide
cases (as said by Cordozo) by matching
the colour of one case against the colour of
another. To decide therefore, on which side
of the line a case falls, the broad
resemblance to another case is not at all
decisive."

xxx

"Precedent should be followed
only so far as it marks the path of justice, but
you must cut the dead wood and trim off the
side branches else you will find yourself lost
in thickets and branches. My plea is to keep
the path to justice clear of obstructions
which could impede it."

43. The judgment in the case of Amal
Kishore Singh (supra) being on a point of
law, which does not arise in the fact situation
of the present case, reliance placed on the
said decision was therefore misplaced and
the judgment of the writ court cannot be
sustained for the said reason.

44. In the facts of the present case,
since the appellant possessed the requisite
eligibility criteria as per the relevant
Regulations, as on the date of occurrence of
vacancy on the post of Principal in the
institution as against the writ petitioner who
was not eligible on the said date, the order
dated 16.05.2013 passed by the DIOS,
which was under challenge in the writ
petition, could not be held to be erroneous so
as to warrant interference.

45. The Special Appeal is, accordingly,
allowed and the judgment dated 19.12.2019
passed in Writ-A No.48219 of 2013 is set
aside.

46. The writ petition stands dismissed.
----------
(2020)02ILR A1612

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 64 of 2020

Dr. Smt. Abha Sharma ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Radhakant Ojha, Sri Ram Gopal
Tripathi

Counsel for the Respondents:
Ms. Akansha Sharma, Sri M.N. Singh, Sri
Pankaj Misra

A. Constitution of India - Article 226 -
confers very wide powers in the matter of
issuing writs on the High Court - remedy
of writ - absolutely discretionary in
character
-
non-entertainment
of
petitions under writ jurisdiction by the
High
Court
when
an
efficacious
alternative remedy is available - rule of
self-imposed limitation - rule of policy,
convenience and discretion rather than a
rule of law - 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
Constitution of India - can legitimately be
invoked by an aggrieved party in a fit
case
-
where
Court comes to
the
conclusion that there has been a breach
of the principles of natural justice or the
procedure required for decision has not
been adopted. (Para-6,7)

The Principal of the institution in question (i.e.
Agra College, Agra) decided the question of
seniority and the private respondent never
invoked the remedy of preferring a statutory
2 All. Dr. Smt. Abha Sharma Vs. State of U.P. & Ors.
1613
appeal
Section
68
of
State
Universities
Act,1973 and under the provisions of Clause
17.14 of the First Statutes of Dr. Bhim Rao
Ambedkar University, Agra - writ petition
dismissed purely on the ground of alternative
remedy.(Para - 1,4)

Held:- 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. (Para 9)

Impugned judgment and order set aside.
(E-7)

List of cases cited:-

1. Farhat Hussain Azad vs. State of U.P. and
Ors. (2005) 1 UPLBEC 474

2. Rakesh Kumar Pandey vs. State of U.P. &
Anr. Special Appeal No. 825 of 2004

3. Commissioner of Income Tax and Ors. Vs.
Chhabil Dass Agarwal , (2014) 1 SCC 603

4. Maharashtra Chess Association Vs. Union of
India and Others , (2019) SCC Online SC 932

if the Court comes to the conclusion that there
has been a breach of the principles of natural
justice or the procedure required for decision
has not been adopted

(Delivered by Hon'ble Biswanath Somadder, J.
& Hon'ble Dr. Yogendra Kumar Srivastava, J.)

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 5 others). By the
impugned judgement 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
hereinbelow in its entirety:-

"Heard Sri R.K. Ojha, learned
Senior Advocate assisted by Sri K.B.
Dixit, counsel for the petitioner and Sri
M.N.
Singh,
learned
counsel
for
respondent Nos.2 and 3.

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.).
1614 INDIAN LAW REPORTS ALLAHABAD SERIES

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 :-

"17.14 All disputes regarding
seniority of teachers (other than the
Principal), shall be decided by the
Principal of the College who shall give
reasons for the decision. Any teacher
aggrieved by the decision of the
Principal may prefer an appeal to the
Vice-Chancellor within 60 days from
the date of communication of such
decision to the teacher concerned. If
the Vice-Chancellor disagrees from the
Principal, he shall give reasons for
such disagreement."

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 Constitution of India, which can
legitimately be invoked by an aggrieved party
in a fit case.

7. The legal position in this regard has
been succinctly summarized in the judgment in
the case of Commissioner of Income Tax
and Ors. Vs. Chhabil Dass Agarwal1,
wherein it was stated as follows :-

"11....It is settled law that nonentertainment of petitions under writ
jurisdiction by the High Court when an
efficacious alternative remedy is available
is a rule of self-imposed limitation. It is
essentially a rule of policy, convenience
and discretion rather than a rule of law.
Undoubtedly, it is within the discretion of
the High Court to grant relief under Article
226 despite the existence of an alternative
remedy...(See State of U.P. v. Mohd. Nooh
AIR 1958 SC 86, Titaghur Paper Mills Co.
Ltd. v. State of Orissa (1983) 2 SCC 433,
Harbanslal Sahnia v. Indian Oil Corpn.
Ltd. (2003)2 SCC 107 and State of H.P. v.
Gujarat Ambuja Cement Ltd. (2005) 6
SCC 499)

12. The Constitution Benches of
this Court in K.S. Rashid and Son v.
Income Tax Investigation Commission AIR
2 All. Dr. Smt. Abha Sharma Vs. State of U.P. & Ors.
1615
1954 SC 207, Sangram Singh v. Election
Tribunal AIR 1955 SC 425, Union of India
v. T.R. Varma AIR 1957 SC 882, State of
U.P. v. Mohd. Nooh AIR 1958 SC 86 and
K.S. Venkataraman and Co. (P) Ltd. v.
State of Madras AIR 1966 SC 1089 have
held that though Article 226 confers very
wide powers in the matter of issuing writs
on the High Court, the remedy of writ is
absolutely discretionary in character. If
the High Court is satisfied that the
aggrieved party can have an adequate or
suitable relief elsewhere, it can refuse to
exercise its jurisdiction. The Court, in
extraordinary circumstances, may exercise
the power if it comes to the conclusion that
there has been a breach of the principles
of natural justice or the procedure
required for decision has not been
adopted.(See N.T. Veluswami Thevar v. G.
Raja Nainar AIR 1959 SC 422, Municipal
Council, Khurai v. Kamal Kumar AIR
1965 SC 1321, Siliguri Municipality v.
Amalendu Das (1984) 2 SCC 436, S.T.
Muthusami v. K. Natarajan (1988) 1 SCC
572, Rajasthan SRTC v. Krishna Kant
(1995) 5 SCC 75, Kerala SEB v. Kurien E.
Kalathil
(2000)
6
SCC
293,
A.
Venkatasubbiah Naidu v. S. Chellappan
(2000) 7 SCC 695, L.L. Sudhakar Reddy v.
State of A.P. (2001) 6 SCC 634, Shri Sant
Sadguru
Janardan
Swami
(Moingiri
Maharaj)
Sahakari
Dugdha
Utpadak
Sanstha v. State of Maharashtra (2001) 8
SCC 509, Pratap Singh v. State of
Haryana (2002) 7 SCC 484 and GKN
Driveshafts (India) Ltd. v. ITO (2003) 1
SCC 72)."

8. The aforementioned view that the
existence of an alternative remedy does
not create an absolute bar on the exercise
of writ jurisdiction by a High Court has
been reiterated in a recent decision in the
case of Maharashtra Chess Association
Vs. Union of India and Others2, in the
following words :-

"22...The
existence
of
an
alternate remedy, whether adequate or not,
does
not
alter
the
fundamentally
discretionary nature of the High Court's
writ jurisdiction and therefore does not
create an absolute legal bar on the exercise
of the writ jurisdiction by a High Court.
The decision whether or not to entertain an
action under its writ jurisdiction remains a
decision to be taken by the High Court on
an
examination
of
the
facts
and
circumstances of a particular case.

23. This understanding has been
laid down in several decisions of this
Court. In Uttar Pradesh State Spinning Co.
Limited v. R S Pandey (2005) 8 SCC 264
this Court held:

"11. Except for a period when
Article
226
was
amended
by
the
Constitution (Forty-Second Amendment)
Act, 1976, the power relating to alternative
remedy has been considered to be a rule of
self imposed limitation. It is essentially a
rule of policy, convenience and discretion
and never a rule of law. Despite the
existence of an alternative remedy it is
within the jurisdiction or discretion of the
High Court to grant relief under Article
226 of the Constitution..."

24. The principle that the writ
jurisdiction of a High Court can be
exercised where no adequate alternative
remedies exist can be traced even further
back to the decision of the Constitution
Bench of this Court in State of Uttar
Pradesh v. Mohammad Nooh 1958 SCR
595 where Justice Vivian Bose observed:

"10. In the next place it must be
borne in mind that there is no rule, with
regard to certiorari as there is with
mandamus, that it will lie only where there
is no other equally effective remedy. It is
1616 INDIAN LAW REPORTS ALLAHABAD SERIES
well established that, provided the requisite
grounds exist, certiorari will lie although a
right of appeal has been conferred by statute.
(Halsbury's Laws of England, 3rd Ed., Vol. 11,
p. 130 and the cases cited there). The fact that
the aggrieved party has another and adequate
remedy may be taken into consideration by the
superior court in arriving at a conclusion as to
whether it should, in exercise of its discretion,
issue a writ of certiorari to quash the
proceedings and decisions of inferior courts
subordinate to it and ordinarily the superior
court will decline to interfere until the
aggrieved party has exhausted his other
statutory remedies, if any. But this rule
requiring the exhaustion of statutory remedies
before the writ will be granted is a rule of
policy, convenience and discretion rather than
a rule of law and instances are numerous
where a writ of certiorari has been issued in
spite of the fact that the aggrieved party had
other adequate legal remedies."

25. The mere existence of alternate
forums where the aggrieved party may secure
relief does not create a legal bar on a High
Court to exercise its writ jurisdiction. It is a
factor to be taken into consideration by the
High Court amongst several factors..."

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.

10. As such, we are of the view that the
impugned judgment and order cannot be
sustained and is liable to be set aside and is
accordingly set aside.

11. The writ petition, being Writ - A
No.-19882 of 2019 (Dr. Smt. Abha
Sharma vs. State of U.P. and 5 others)
shall be heard finally upon exchange of
affidavits.

12. Counter affidavit to be filed
within four weeks. Rejoinder thereto, if
any, be filed within two weeks therefrom.

13. List this matter on 16.3.2020
before
the
learned
Bench
having
appropriate determination.
----------

(2020)02ILR A1616

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 87 of 2020

C/M
Bharti
Inter
College,
Dhatari,
Firozabad & Anr. ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
Sri Mata Prasad, Sri Anil Bhushan, Sri
Pratik Srivastava

A.
Service
Law-
Promotion
-
Intermediate
Education
Act,
1921:
Section 32; Uttar Pradesh Secondary
Education Services Selection Board Act,
1982: Sections 2(i), 12, 32, 35; Uttar