# Mahadev Prasad & another v. State Of U.P. & others

- **Citation:** (2010) 3 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-17
- **Case number:** Special Appeal Defective No. 788 of 2008
- **Bench:** F.I. Rebello, C.J. S.N. Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahadev-prasad-another-v-state-of-u-p-others-41824
- **Pages:** 6

## Headnote

Constitution
of
India
Art.
226-writ
petition-alternative remedy-while identical
Writ Petitions challenging vires pendingheld -alternative remedy to approach
before tribunal not proper-matter remitted
back before Single Judge for decision on
merit.

Held: Para 7

The question, therefore, is whether the
jurisdiction is exclusive. On the facts of the
case it is open to the Court to exercise its
discretion
or
not
exercise
to
its
jurisdiction.
The
contention
of
the
petitioner is that the person similarly
situated like him are before the Courts and
these petitions are pending and in these
circumstances the direction issued by the
learned Single Judge to the petitioners to
go to the Administrative Tribunal to file a
claim petition is not proper. The rule of
alternative remedy would not bar a writ
court to exercise extraordinary jurisdiction
as the rule is a rule of procedure. The law
has been reiterated in the case of
Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and others (1998) 8
SCC 1.
Case law discussed:
(L&S) Vol.-1, Page -577, (1998) 8 SCC 1

## Text

3 All] Mahadev Prasad and another V. State of U.P.and others
921
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.08.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE S.N. SHUKLA, J.

Special Appeal Defective No. 788 of 2008

Mahadev Prasad & another ...Petitioners
Versus
State Of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri O.P. Srivastava

Cousel for the Respondents:
C.S.C.

Constitution
of
India
Art.
226-writ
petition-alternative remedy-while identical
Writ Petitions challenging vires pendingheld -alternative remedy to approach
before tribunal not proper-matter remitted
back before Single Judge for decision on
merit.

Held: Para 7

The question, therefore, is whether the
jurisdiction is exclusive. On the facts of the
case it is open to the Court to exercise its
discretion
or
not
exercise
to
its
jurisdiction.
The
contention
of
the
petitioner is that the person similarly
situated like him are before the Courts and
these petitions are pending and in these
circumstances the direction issued by the
learned Single Judge to the petitioners to
go to the Administrative Tribunal to file a
claim petition is not proper. The rule of
alternative remedy would not bar a writ
court to exercise extraordinary jurisdiction
as the rule is a rule of procedure. The law
has been reiterated in the case of
Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and others (1998) 8
SCC 1.
Case law discussed:
(L&S) Vol.-1, Page -577, (1998) 8 SCC 1
(Delivered by Hon'ble F.I. Rebello, C.J.)

1. Heard counsels for the parties.

The appellants have filed the present
special appeal against the order of the
learned Single Judge, who refused to
exercise the jurisdiction by holding that the
petitioners have got equally efficacious
remedy by filing claim petition before the
U.P. Public Services Tribunal.

2. In the judgement of L. Chandra
Kumar Vs. Union of India and Others,
reported in 1997 Supreme Court Case
(L&S) Vol.- 1, Page- 577, the Hon'ble
Supreme Court in para 93 observed as
under:-

Para 93- "Before moving on to other
aspects, we may summarise our conclusions
on the jurisdictional powers of these
Tribunals. The Tribunals are competent to
hear matters where the vires of statutory
provisions are questioned. However, in
discharging this duty, they cannot act as
substitutes for the High Courts and the
Supreme Court which have, under our
constitutional set-up, been specifically
entrusted with such an obligation. Their
function
in
this
respect
is
only
supplementary and all such decisions of the
Tribunals will be subject to scrutiny before
a Divisions Bench of the respective High
Courts. The Tribunals will consequently
also have the power to test the vires of
subordinate
legislations
and
rules.
However, this power of the Tribunals will
be subject to one important exception. The
Tribunals shall not entertain any question
regarding the vires of their parent statutes
following the settled principle that a
Tribunal which is a creature of an Act
cannot declare that very Act to be
unconstitutional. In such cases alone, the
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
High Court concerned may be approached
directly. All other decisions of these
Tribunals, rendered in cases that they are
specifically empowered to adjudicate upon
by virtue of their parent statutes, will also
be subject to scrutiny before a Division
Bench of their respective High Courts. We
may add that the Tribunals will, however,
continue to act as the only courts of first
instance in respect of the areas of law for
which they have been constituted. By this,
we mean that it will not be open for litigants
to directly approach the High Courts even
in cases where they question the vires of
statutory legislations (except, as mentioned,
where the legislation which creates the
particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal
concerned."

3. It is further pointed out that the
provisions of the U.P. Public Services
(Tribunal) Act, 1976 are different from the
provisions
of
Central
Administrative
Tribunal Act, 1985. We may gainfully refer
to Sections 14 & 28 of the Central
Administrative Tribunal Act, 1976. The
said provisions read as under:-

14. Jurisdiction, powers and authority
of the Central Administrative Tribunal.-(1)
Save as otherwise expressly provided in this
Act, the Central Administrative Tribunal
shall exercise, on and from the appointed
day, all the jurisdiction, powers and
authority exercisable immediately before
that day by all courts (except the Supreme
Court in relation to-

(a)
recruitment,
and
matters
concerning recruitment, to any All- India
Service or to any civil service of the Union
or a civil post under the Union or to a post
connected with defence or in the defence
services, being, in either case, a post filled
by a civilian;

(b) all service matters concerning-

(i) a member of any All-India Service;
or

(ii) a person [not being a member of
an All-India Service or a person referred to
in clause (c)] appointed to any civil service
of the Union or any civil post under the
Union; or

(iii) a civilian [not being a member of
an All-India Service or a person referred to
in clause (c)] appointed to any defence
services or a post connected with defence,

and pertaining to the service of such
member, person or civilian, in connection
with the affairs of the Union or of any State
or of any local or other authority within the
territory of India or under the control of the
Government of India or of any corporation
[or society] owned or controlled by the
Government;

(c) all service matters pertaining to
service in connection with the affairs of the
Union concerning a person appointed to
any service or post referred to in sub-clause
(ii) or sub-clause (iii) of clause (b), being a
person whose services have been placed by
a State Government or any local or other
authority or any corporation [or society] or
other body, at the disposal of the Central
Government for such appointment.

(2) The Central Government may, by
notification, apply with effect from such
date as may be specified in the notification
the provisions of sub-section (3) to local or
other authorities within the territory of
India or under the control of the
3 All] Mahadev Prasad and another V. State of U.P.and others
923
Government of India and to corporations
[or societies] owned or controlled by
Government, not being a local or other
authority or corporation [or society]
controlled
or
owned
by
a
State
Government:

Provided
that
if
the
Central
Government considers it expedient so to do
for the purpose of facilitating transition to
the scheme as envisaged by this Act,
different dates may be so specified under
this sub-section in respect of different
classes of, or different categories under any
class of, local or other authorities or
corporations [or societies].

(3) Save as otherwise expressly
provided
in
this
Act,
the
Central
Administrative Tribunal shall also exercise,
on and from the date with effect from which
the provisions of this sub-section apply to
any local or other authority or corporation
[or society], all the jurisdiction, powers and
authority exercisable immediately before
that date by all courts (except the Supreme
Court) in relation to-

(a)
recruitment,
and
matters
concerning recruitment, to any service or
post in connection with the affairs of such
local or other authority or corporation [or
society]; and

(b) all service matters concerning a
person [other than a person referred to in
clause (a) or clause (b) of sub-section (1) ]
appointed to any service or post in
connection with the affairs of such local or
other authority or corporation [or society]
and pertaining to the service of such person
in connection with such affairs.

28. Exclusion of jurisdiction of courts
except the Supreme Court under article
136 of the Constitution.- On and from the
date from which any jurisdiction, powers
and authority becomes exercisable under
this Act by a Tribunal in relation to
recruitment
and
matters
concerning
recruitment to any Service or post or
service matters concerning members of any
Service or persons appointed to any Service
or post, [no court except-

(a) the Supreme Court; or

(b) any Industrial Tribunal, Labour
Court or other authority constituted under
the Industrial Disputes Act, 1947 [14 of
1947] of any other corresponding law for
the time being in force,

shall have], or be entitled to exercise
any jurisdiction, powers or authority in
relation to such recruitment or matters
concerning such recruitment or such
service matters.

4. The Supreme Court in L. Chandra
Kumar
(supra)
considering
these
provisions was pleased to hold that the
employees must first approach the Tribunal
after
considering
the
scope
of
the
Administrative Tribunal Act.

The provisions for reference of claim
to the Tribunal under the U.P. Act are
contained in Section 4 of the U.P. Act,
which reads as under :-

4. Reference of claim to Tribunal.- (1)
Subject to the other provisions of this Act, a
person who is or has been a public servant
and is aggrieved by an order pertaining to
to a service matter within the jurisdiction of
the Tribunal, may make a reference of claim
to the Tribunal for the redressal of his
grievance.
924 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Explanation.- For the purpose of this
Sub-section "order" means an order or
omission
or
in-action
of
the
State
Government or a local authority or any
other Corporation or company referred to
in clause (b) of Section 2 or of an officer,
committee or other body or agency of the
State Government or such local authority or
Corporation or company:

Provided that no reference shall,
subject to the terms of any contract, be
made in respect of a claim arising out of the
transfer of a public servant.

Provided further that in the case of the
death of a public servant, his legal
representative, and where there are two or
more such representatives, all of them
jointly, may make a reference to the
Tribunal for payment of salary, allowances,
gratuity, provident fund, pension and other
pecuniary benefits relating to services due
to such public servant.

(2)Every reference under sub-section
(1) shall be in such form and be
accompanied by such documents or other
evidence and by such fee in respect of the
filing of such reference and by such other
fees for the services or execution of
processes, as my be prescribed.

(3)On receipt of a reference under
sub-section (1), the Tribunal shall, if
satisfied after such inquiry as it may deem
necessary that the reference is fit for
adjudication or trial by it, admit such
reference and where the Tribunal is not so
satisfied, it shall summarily reject the
reference after recording its reasons.

(4)Where a reference has been
admitted by the Tribunal under sub-section
(3), every proceeding under the relevant
service rules or regulation or any contract
as to redressal of grievances in relation to
the
subject-matter of such
reference
pending immediately before such admission
shall abate, and save as otherwise directed
by
the
Tribunal,
no
appeal
or
representation in relation to such matter
shall thereafter be entertained under such
rules, regulations or contract.

(5)The Tribunal shall not ordinarily
admit a reference unless it is satisfied that
the public servant has availed of all the
remedies available to him under the
relevant service rules, regulations or
contract as to redressal of grievances.

(6)For the purpose of sub-section (5) a
public servant shall be deemed to have
availed of all the remedies available to him
if a final order has been made by the State
Government, an authority or officer thereof
or other person competent to pass such
order under such rules or regulations or
contract rejecting any appeal preferred or
representation made by such public servant
in connection with the grievance;

Provided that where no final order is
made by the State Government, authority
officer or other person competent to pass
such order with regard to the appeal
preferred or representation mad by such
public servant within six months from the
date on which such appeal was preferred or
representation was made, the public servant
may, by a written notice by registered post
require such competent authority to pass
the order and if the order is not passed
within one month of the service of such
notice, the public servant shall be deemed to
have availed of all the remedies available
available to him.
3 All] Mahadev Prasad and another V. State of U.P.and others
925

(7) For the purposes of sub-sections (5)
and (6) any remedy available the public
servant by way of submission of a memorial
to the Governor on any other functionary
shall not be deemed to be one of the
remedies, which are available unless the
public servant had elected to submit such
memorial.

5. There is no definition of public
servant in Central Administrative Tribunal
Act. Though there is definition of public
servant in Section 2(b) in U.P. Act, which
reads as under:-

2(b) - " Public Servant" means every
person in the service or pay of-

(i) the State Government ; or

(ii) a local authority not being a
Cantonment Board; or

(iii) any other corporation owned or
controlled
by
the
State
Government
(including any company as defined in Section
3 of the Companies Act, 1956 in which not
less than fifty per cent of paid up share
capital is held by the State Government) but
does not include-

(1) a person in the pay or service of any
other company; or

(2) a member of the All India Services
or other Central Services;

and definition of service matter, section
2(bb) reads as under:-

2(bb) "Service Matter" means a matter
relating to the conditions of service of a
public servant.

6. Considering the Section 4 of the
U.P. Act, we are of the opinion that for
reference of claim to Tribunal a person has to
be a public servant and the matter must
pertain to a service matter. The issue where
the appellant here in is holding as a public
servant need not to be decided and
considered.

7. The question, therefore, is whether
the jurisdiction is exclusive. On the facts of
the case it is open to the Court to exercise its
discretion or not exercise to its jurisdiction.
The contention of the petitioner is that the
person similarly situated like him are before
the Courts and these petitions are pending
and in these circumstances the direction
issued by the learned Single Judge to the
petitioners to go to the Administrative
Tribunal to file a claim petition is not proper.
The rule of alternative remedy would not bar
a writ court to exercise extraordinary
jurisdiction as the rule is a rule of procedure.
The law has been reiterated in the case of
Whirlpool Corporation Vs. Registrar of
Trade Marks, Mumbai and others (1998)
8 SCC 1.

Considering the above facts, we are of
the opinion that this would be a fit case for
this Court to exercise its extraordinary
jurisdiction.

8. In the light of the above as well as
pendency of other writ petitions before this
Court, we hereby set aside the order passed
by the learned Single Judge and remand the
matter back to the learned Single Judge for
deciding the contrary.

9. The Special Appeal is allowed,
accordingly.

No order as to costs.
---------
926 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2010

BEFORE
THE HON'BLE F.I. REBELLO, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No. 1196 Of 2010

Har Charan

 ...Petitioner
Versus
State Of U.P.and others ...Respondent

Counsel for the Petitioner:
Sri P.K. Dubey
Sri Dharampal Singh
Sri S. Niranjan

Counsel for the Respondents:
C.S.C.

Service-U.P.
Basic
Education(Teachers)
Service Rules 1981-Rule 29, readwith Rule
2(aa)-Superannuation of Headmaster-date
of birth being 1st July 1948-his retirement
on
30/06/2010-whether
entitled
to
continue till 30th June 2011 in the next
session-held,2004(2)
AWC
1005(LB)
Single Judge taking contra view is per
incuriam-no longer resintegra-controversy
decided
in
terms
of
Division
Bench
judgement reported in 1987 UPLBEC 566.

Held: Para 3, 5 and 6

We find that the issue is no longer resintegra as it already stands answered by
a learned Coordinate Bench of this Court
in the case of Ram Lal Prasad Vs. State
of U.P. and others, reported in 1987
UPLBEC 566 (Paras 26 to 28).

It appears that the judgment of the
Division Bench in the case of Ram Lal
Prasad (supra) was not brought to the
notice of the learned Single Judge in the
case of Mannu Lal (supra).

In view of the judgment in the case of
Ram Lal Prasad (supra) the judgment in
the case of Mannu Lal and others (supra)
stands overruled.
Case law discussed:
2004 (2) AWC 1005 (LB), 1987 UPLBEC 566,
2004 (2) AWC 1005 (LB) overruled

(Delivered by Hon'ble F.I. Rebello, C.J.)

1. The appellant who is a Head
Master in Senior Basic School has been
served with an order dated 7th April,
2010 retiring him from service with
effect from 30th June, 2010. The date of
birth of the appellant is 1st July, 1948.

2. The contention raised by Sri
Dharmapal
Singh
learned
Senior
Counsel for the appellant is that the
appellant is entitled to continue in the
next session i.e. after 30th June, 2010
till 30th June, 2011. Sri Singh relies on
the provisions of Rule 29 of the U.P.
Basic
Education
Teachers
Service
Rules, 1981 read with Rule 2(aa) of the
same rules.

3. We find that the issue is no
longer res-integra as it already stands
answered by a learned Coordinate
Bench of this Court in the case of Ram
Lal Prasad Vs. State of U.P. and others,
reported in 1987 UPLBEC 566 (Paras
26 to 28).

4. A judgment of a learned Single
Judge of the Lucknow Bench to the
contrary in the case of Mannu Lal and
others Vs. State of U.P. and others
reported in 2004 (2) AWC 1005 (LB)
has been relied on by the learned
counsel.

5. It appears that the judgment of
the Division Bench in the case of Ram