# The C/M, Jubilee Sanskrit College Ballia & Anr v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 665
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-06
- **Case number:** Writ-A No. 11437 of 2024
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-c-m-jubilee-sanskrit-college-ballia-anr-v-state-of-u-p-ors-52501
- **Pages:** 10

## Headnote

A. Education Law - Maintainability - U.P.
State Universities Act, 1973 - Section 68 -
A preliminary objection has been raised as to
the maintainability of the writ petition u/Article
226 of Constitution of India against the order
impugned dated 23.06.2024 passed by Vice
Chancellor as remedy lies u/s 68 of U.P. State
Universities Act, 1973 (hereinafter called as 'Act
of 1973') before the Chancellor.

Alternate remedy is not an absolute bar.
There is self-contained restriction upon the
Courts to entertain writ petitions in case there is
an statutory remedy available. Right from the
year 1958 till date, Hon'ble Apex Court had held
that writ petitions are maintainable u/Article
226, and the jurisdiction cannot be ousted
merely on the ground of alternative
remedy. (Para 10)
B. Three guiding principles where a writ
petition
can
be
entertained
and
alternative remedy will not operate as a
bar
are
for
the
enforcement
of
Fundamental Rights or where there has
been violation of principles of natural
justice or where the order or proceedings
are wholly without jurisdiction or vires of
Act is under challenge. (Para 26)

C. Difference between "entertainability"
and "maintainability" of writ petition -
Objection as to the "maintainability" goes
to the root of the matter and if such
objections were found to be of substance,
the courts would be rendered incapable of
even receiving the lis for adjudication. On
the
contrary,
the
question
of
"entertainability" is entirely within the
realm of discretion of the High Court, writ
remedy being discretionary. A writ petition
despite
being
maintainable
may
not
be
entertained by a Court for many reasons or
relief and could be refused to the petitioner,
despite setting up a sound legal point. Dismissal
of a writ petition by a High Court on the ground
that the petitioner has not availed
the
alternative remedy without, however, examining
whether an exceptional case has been made out
for such entertainment would not be proper.
(Para 27)

In the present case, it would be unjust to
relegate the matter to Chancellor u/s 68 of the
Act of 1973 as on four earlier occasions either
the fourth respondent or the petitioner has
assailed the orders passed by Vice Chancellor
and in the earlier round of litigation, similar
stands was taken by fourth respondent which
was repelled by the Court and the Vice
Chancellor proceeded to adjudicate the matter.
(Para 28)

Taking the same ground would be injustice and
unnecessarily dragging the matter. The dispute
raised is only as to the genuineness of
experience certificate and competence of issuing
authority/Principal is before this Court as well as
it was before the Vice Chancellor. (Para 29)

On the two occasions, the Vice Chancellor has
failed to address the real issue as to whether
the Principal was competent enough to issue
666 INDIAN LAW REPORTS ALLAHABAD SERIES
such experience certificate being not an
appointing authority. He was required to
adjudicate whether an experience certificate
could be issued by a Principal of an Institution
or by the appointing authority. (Para 30)

The present writ petition cannot be thrown
away on the ground of alternative remedy as
has already been held by Apex Court that it is
not an absolute bar and is maintainable under
the guidelines laid down by Apex Court. (Para
32)

Writ petition held to be maintainable. (E-5)

Precedent followed:

## Text

9 All. The C/M, Jubilee Sanskrit College Ballia & Anr. Vs. State of U.P. & Ors.
665
been removed and shall be paid his entire
arrears of salary and the current salary,
however, it will be remain open for the
respondent
to
initiate
disciplinary
proceedings as may be advised but, this
time strictly in accordance with law.
----------
(2024) 9 ILRA 665
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2024

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-A No. 11437 of 2024

The C/M, Jubilee Sanskrit College Ballia &
Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Nityodit Tripathi, Sri Shivendu Ojha, Sri
R.K. Ojha (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Laxman Tripathi, Sri Shesh
Kumar Srivastava, Sri Anil Tiwari (Sr. Adv.)

A. Education Law - Maintainability - U.P.
State Universities Act, 1973 - Section 68 -
A preliminary objection has been raised as to
the maintainability of the writ petition u/Article
226 of Constitution of India against the order
impugned dated 23.06.2024 passed by Vice
Chancellor as remedy lies u/s 68 of U.P. State
Universities Act, 1973 (hereinafter called as 'Act
of 1973') before the Chancellor.

Alternate remedy is not an absolute bar.
There is self-contained restriction upon the
Courts to entertain writ petitions in case there is
an statutory remedy available. Right from the
year 1958 till date, Hon'ble Apex Court had held
that writ petitions are maintainable u/Article
226, and the jurisdiction cannot be ousted
merely on the ground of alternative
remedy. (Para 10)
B. Three guiding principles where a writ
petition
can
be
entertained
and
alternative remedy will not operate as a
bar
are
for
the
enforcement
of
Fundamental Rights or where there has
been violation of principles of natural
justice or where the order or proceedings
are wholly without jurisdiction or vires of
Act is under challenge. (Para 26)

C. Difference between "entertainability"
and "maintainability" of writ petition -
Objection as to the "maintainability" goes
to the root of the matter and if such
objections were found to be of substance,
the courts would be rendered incapable of
even receiving the lis for adjudication. On
the
contrary,
the
question
of
"entertainability" is entirely within the
realm of discretion of the High Court, writ
remedy being discretionary. A writ petition
despite
being
maintainable
may
not
be
entertained by a Court for many reasons or
relief and could be refused to the petitioner,
despite setting up a sound legal point. Dismissal
of a writ petition by a High Court on the ground
that the petitioner has not availed
the
alternative remedy without, however, examining
whether an exceptional case has been made out
for such entertainment would not be proper.
(Para 27)

In the present case, it would be unjust to
relegate the matter to Chancellor u/s 68 of the
Act of 1973 as on four earlier occasions either
the fourth respondent or the petitioner has
assailed the orders passed by Vice Chancellor
and in the earlier round of litigation, similar
stands was taken by fourth respondent which
was repelled by the Court and the Vice
Chancellor proceeded to adjudicate the matter.
(Para 28)

Taking the same ground would be injustice and
unnecessarily dragging the matter. The dispute
raised is only as to the genuineness of
experience certificate and competence of issuing
authority/Principal is before this Court as well as
it was before the Vice Chancellor. (Para 29)

On the two occasions, the Vice Chancellor has
failed to address the real issue as to whether
the Principal was competent enough to issue
666 INDIAN LAW REPORTS ALLAHABAD SERIES
such experience certificate being not an
appointing authority. He was required to
adjudicate whether an experience certificate
could be issued by a Principal of an Institution
or by the appointing authority. (Para 30)

The present writ petition cannot be thrown
away on the ground of alternative remedy as
has already been held by Apex Court that it is
not an absolute bar and is maintainable under
the guidelines laid down by Apex Court. (Para
32)

Writ petition held to be maintainable. (E-5)

Precedent followed:

1. St. of U.P. Vs Mohammad Nooh, AIR 1958 SC
86 (Para 3)

2. A.V. Venkateshwaran Vs Ramchand Sobhraj
Wadhwani, AIR 1961 SC 1506 (Para 4)

3. Calcutta Discount Co. Ltd. Vs ITO, Companies
District I Calcutta & anr., AIR 1961 SC 372 (Para
5)

4. Whirlpool Corpo. Vs Registrar of Trade Marks,
Mumbai & ors., (1998) 8 SCC 1 (Para 6)

5. Harbanslal Sahnia Vs Indian Oil Corp. Ltd. ,
(2003) 2 SCC 107 (Para 7)

6. Assistant Commissioner of State Tax & ors.
Vs M/s Commercial Steel Ltd., (2022) 16 SCC
447 (Para 8)

7. Godrej Sara Lee Ltd. Vs Excise & Taxation
Officer-cum-Accessing
Authority,
2023
SCC
OnLine SC 95 (Para 9)

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. A preliminary objection has
been raised as to the maintainability of the
writ
petition
under
Article
226
of
Constitution of India against the order
impugned dated 23.06.2024 passed by Vice
Chancellor as remedy lies under Section 68
of U.P. State Universities Act, 1973
(hereinafter called as 'Act of 1973') before
the Chancellor.

2. The question as to whether an
alternative remedy is an absolute bar to the
maintainability of the writ petition under
Article 226 has been under constant legal
vigil of not only the Apex Court but also of
this Court. From time to time the Hon'ble
Apex Court had dealt with the issue in
extenso and in categorical terms held that
alternative remedy is not an absolute bar as
to the maintainability of a writ petition
under Article 226 of Constitution.

3. The matter as to exhaustion of
statutory remedy came up for consideration
before Hon'ble Apex Court in case of State
of U.P. vs. Mohammad Nooh, AIR 1958
SC 86 and the Hon'ble Apex Court
observed as under:-

 "... 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 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 Edn., 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,
9 All. The C/M, Jubilee Sanskrit College Ballia & Anr. Vs. State of U.P. & Ors.
667
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."

4. The Constitution Bench of Apex
Court in case of A.V. Venkateswaran vs.
Ramchand Sobhraj Wadhwani, AIR
1961 SC 1506 considered the above view
and held as under:-

 "10.
The
passages
in
the
judgments of this Court we have extracted
would indicate (1) that the two exceptions
which
the
learned
Solicitor-General
formulated to the normal Rule as to the
effect of the existence of an adequate
alternative remedy were by no means
exhaustive, and (2) that even beyond them
a discretion vested in the High Court to
have entertained the petition and granted
the petitioner relief notwithstanding the
existence of an alternative remedy. We
need only add that the broad lines of the
general principles on which the Court
should act having been clearly laid down,
their application to the facts of each
particular
case
must
necessarily
be
dependent on a variety of individual facts
which must govern the proper exercise of
the discretion of the Court, and that in a
matter which is thus pre-eminently one of
discretion, it is not possible or even if it
were, it would not be desirable to lay down
inflexible Rules which should be applied
with rigidity in every case which comes up
before the Court."

5. Another Constitution Bench of
Hon'ble Apex Court in Calcutta Discount
Co. Ltd. vs. ITO, Companies District I
Calcutta and another, AIR 1961 SC 372
again had the occasion to consider the issue
in regard to alternative remedy in a matter
relating to income tax and the Court held as
under:-

 "26. Mr Sastri next pointed out
that at the stage when the Income Tax
Officer issued the notices he was not acting
judicially or quasi-judicially and so a writ
of certiorari or prohibition cannot issue. It
is well settled however that though the writ
of prohibition or certiorari will not issue
against an executive authority, the High
Courts have power to issue in a fit case an
order prohibiting an executive authority
from acting without jurisdiction. Where
such action of an executive authority acting
without jurisdiction subjects or is likely to
subject a person to lengthy proceedings
and unnecessary harassment, the High
Courts, it is well settled, will issue
appropriate orders or directions to prevent
such consequences."

6. In Whirlpool Corporation vs.
Registrar of Trade Marks, Mumbai and
others (1998) 8 SCC 1, Hon'ble Apex
Court again had the occasion to consider
the matter of exhaustion of remedies and
whether the writ under Article 226 was
maintainable in case there was any
alternative remedy. The Court held that
power to issue prerogative writs under
Article 226 is plenary in nature and is not
limited
by
any
other
provision
of
Constitution. However, the Court laid
down that alternative remedy would not
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for enforcement of
any of the Fundamental Rights or where
there has been a violation of principle of
natural justice, or where the order or
proceedings
are
wholly
without
jurisdiction or the vires of an Act is
challenged.
Relevant
paragraphs
are
extracted hereasunder:-
668 INDIAN LAW REPORTS ALLAHABAD SERIES
 "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."

7. Relying upon the decision in
Whirlpool
Corporation
(supra),
the
Hon'ble Apex Court in Harbanslal Sahnia
vs. Indian Oil Corpn. Ltd., (2003) 2 SCC
107 reiterated the above provisions and
held as under:-
 "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
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
petitioners'
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."

8. In Assistant Commissioner of
State
Tax
and
others
vs.
M/s
Commercial Steel Limited, (2022) 16
SCC 447, the Apex Court while dealing
with provisions of Section 107 of Central
Goods and Service Tax Act, 2017 found
that where an appeal lies against an order
of deduction and notice issued under
Section 20 but a writ petition was filed. The
Apex Court held as under:-

 "10. The respondent had a
statutory remedy under Section 107.
9 All. The C/M, Jubilee Sanskrit College Ballia & Anr. Vs. State of U.P. & Ors.
669
Instead of availing of the remedy, the
respondent instituted a petition under
Article 226. The existence of an alternative
remedy is not an absolute bar to the
maintainability of a writ petition under
Article 226 of the Constitution. But a writ
petition can be entertained in exceptional
circumstances where there is:

(i) a
breach
of
fundamental
rights;
(ii)
 (ii) a violation of the principles of
natural justice;

 (iii) an excess of jurisdiction; or

 (iv) a challenge to the vires of the
statute or delegated legislation."

9. Similarly, in Godrej Sara Lee
Ltd. v. Excise &Taxation Officer-cumAccessing Authority, 2023 SCC OnLine
SC 95, the Apex Court discussed the
concept
of
"entertainability"
and
"maintainability" of a writ petition and held
that they are distinct concepts and held as
under:-

 "4.
Before
answering
the
questions, we feel the urge to say a few
words on the exercise of writ powers
conferred by article 226 of the Constitution
having come across certain orders passed
by the High Courts holding writ petitions
as "not maintainable" merely because the
alternative remedy provided by the relevant
statutes has not been pursued by the parties
desirous
of
invocation
of
the
writ
jurisdiction. The power to issue prerogative
writs under article 226 is plenary in nature.
Any limitation on the exercise of such
power must be traceable in the Constitution
itself. Profitable reference in this regard
may
be
made
to
article
329
and
ordainments of other similarly worded
articles in the Constitution. Article 226
does not, in terms, impose any limitation or
restraint on the exercise of power to issue
writs. While it is true that exercise of writ
powers despite availability of a remedy
under the very statute which has been
invoked and has given rise to the action
impugned in the writ petition ought not to
be made in a routine manner, yet, the mere
fact that the petitioner before the High
Court, in a given case, has not pursued the
alternative remedy available to him/it
cannot mechanically be construed as a
ground for its dismissal. It is axiomatic that
the High Courts (bearing in mind the facts
of each particular case)

 have a discretion whether to
entertain a writ petition or not. One of the
self-imposed restrictions on the exercise of
power under article 226 that has evolved
through judicial precedents is that the High
Courts should normally not entertain a writ
petition, where an effective and efficacious
alternative remedy is available. At the same
time, it must be remembered that mere
availability of an alternative remedy of
appeal or revision, which the party
invoking the jurisdiction of the High Court
under article 226 has not pursued, would
not oust the jurisdiction of the High Court
and
render
a
writ
petition
"not
maintainable". In a long line of decisions,
this court has made it clear that availability
of an alternative remedy does not operate
as an absolute bar to the "maintainability"
of a writ petition and that the rule, which
requires a party to pursue the alternative
remedy provided by a statute, is a rule of
policy, convenience and discretion rather
than a rule of law. Though elementary, it
needs to be restated that "entertainability"
and "maintainability" of a writ petition are
670 INDIAN LAW REPORTS ALLAHABAD SERIES
distinct concepts. The fine but real
distinction between the two ought not to be
lost
sight
of.
The
objection
as
to
"maintainability" goes to the root of the
matter and if such objection were found to
be of substance, the courts would be
rendered incapable of even receiving the lis
for adjudication. On the other hand, the
question of "entertainability" is entirely
within the realm of discretion of the High
Courts, writ remedy being discretionary. A
writ petition despite being maintainable
may not be entertained by a High Court for
very many reasons or relief could even be
refused to the petitioner, despite setting up
a sound legal point, if grant of the claimed
relief would not further public interest.
Hence, dismissal of a writ petition by a
High Court on the ground that the
petitioner has not availed the alternative
remedy
without,
however,
examining
whether an exceptional case has been made
out for such entertainment would not be
proper."

10. Thus, from the decisions of
Hon'ble Apex Court cited above, it is clear
that alternate remedy is not an absolute bar.
There is self contained restriction upon the
Courts to entertain writ petitions in case
there is an statutory remedy available.
Right from the year 1958 till date, Hon'ble
Apex Court had held that writ petitions are
maintainable under Article 226, and the
jurisdiction cannot be ousted merely on the
ground
of
alternative
remedy.
The
Constitution Bench of 1961 had carved out
the exceptions under which the writ
petitions are maintainable.

11. Much water has flown since
then and in Whirlpool Corporation (supra),
the Hon'ble Apex Court had clearly laid
down the three contingencies under which
alternative remedy would not operate as a
bar. They are - (i) where the writ petition
has been filed for the enforcement of any of
the Fundamental Rights (ii) where there has
been a violation of the principle of natural
justice or (iii) where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. The
said principles as laid down had been
followed in the subsequent decisions of
Apex Court which till date is being
followed.

12 . Now, adverting to the facts of
the instant case which are necessary for the
better understanding of the case as to
whether the writ petition filed before this
Court is maintainable or not under Article
226 of Constitution of India.

13. There is a Sanskrit Degree
College in the name of Jubilee Sanskrit
College, Ballia. It is affiliated with
Sampurnanand Sanskrit Vishwavidyalaya,
Varanasi and provisions of first Statute are
applicable. The Institution is under grant in
aid list of State Government and Payment
of Salary Act, 1971 is applicable by virtue
of Section 2(b) of the Act. Being a degree
college, it is governed by the Act of 1973.

14. After retirement of one Baij
Nath Pandey, who was the Principal of the
College, in the year 2015, the post of
Principal fell vacant. An advertisement was
published
in
two
newspapers
on
16.07.2015. The fourth respondent applied
and
filled
his
application
form
on
23.07.2015. Along with the application
documents including experience certificate
issued by Principal of one Sri Ramanand
Peeth Sanskrit Mahavidyalaya Karnghanta,
Varanasi
dated
12.01.2015
was
also
annexed which reflects his appointment
since July, 2004. The interview was held on
03.04.2016.
The
fourth
respondent
9 All. The C/M, Jubilee Sanskrit College Ballia & Anr. Vs. State of U.P. & Ors.
671
submitted another experience certificate
issued by Principal, Sri Ramanand Peeth
Sanskrit
Mahavidyalaya
Karnghanta,
Varanasi dated 23.07.2015 which reflects
that he was appointed in month of July,
2010 by the Committee of Management
and was teaching up till date on the post of
Sahayak Vyakaran Pravakta. He joined the
Institution on 15.06.2016. His probation
period was from 15.06.2016 to 15.06.2017.

15.

The
Committee
of
Management of the Institution through
correspondence dated 01.06.2017 sought
verification of the experience certificate
dated 23.07.2015. The Manager of Sri
Ramanand Peeth Sanskrit Mahavidyalaya
Karnghanta,
Varanasi
on
03.07.2017
apprised that fourth respondent was never
appointed in his College and experience
certificate dated 23.07.2015 appears to be
forged and fabricated. The Committee of
Management sought clarification from
fourth respondent on 13.05.2017. A reply
was submitted on 11.07.2017 along with an
affidavit stating that all the documents were
submitted at the time of appointment and
there was no criminal case pending against
the fourth respondent except a criminal
case registered under Section 107/116 of
I.P.C. The period of probation was
extended for another six months by
Committee of Management on 16.07.2017.
Thereafter, he submitted his certificates of
educational
qualifications
along
with
experience certificate dated 23.07.2015
through letter dated 18.07.2017. It appears
that a complaint was made in respect of the
experience certificate of fourth respondent,
pursuant to which the Committee of
Management
decided
to
conduct
an
inquiry. Notices were issued to fourth
respondent seeking his reply in the matter.
The inquiry report was submitted by
Chairman on 04.02.2018 to Manager of the
Institution. The Committee of Management
proceeded to suspend the fourth respondent
on 18.02.2018 and directed to hand over
the charge to senior most teacher Mr.
Siddharth Shanker Ojha. The Manager,
thereafter, passed a consequential order on
19.02.2018 putting the fourth respondent
under suspension. Thereafter, charge-sheet
was served and the matter was placed
before Vice Chancellor through letter dated
20.02.2018. An objection was filed to the
said charge-sheet on 03.03.2018. On
11.05.2018, last opportunity opportunity
was given to fourth respondent for
submitting his explanation. On 07.06.2018,
the appointment of fourth respondent as
Principal was cancelled. The matter was
placed
before
Vice
Chancellor
on
19.06.2018.

16.

The
order
cancelling
appointment was challenged by fourth
respondent before this Court through Writ
Petition No. 3813 of 2022. The writ Court
on 27.04.2022 directed the Vice Chancellor
of the University to take decision regarding
termination of service of fourth respondent.
The
Vice
Chancellor
on
14.11.2022
approved the suspension as well as
termination order of fourth respondent.
Again, the same was challenged by fourth
respondent through Writ-A No. 20283 of
2022. The writ Court on 13.12.2022 while
disposing of the writ petition set aside the
order passed by Vice Chancellor and
remanded back the same to be decided
again.

17. Post remand, the Vice
Chancellor by order dated 16.04.2023 again
approved the suspension and termination
order.
The
fourth
respondent
again
challenged the same through Writ Petition
No. 9080 of 2023. The order was again
quashed and remanded back to Vice
672 INDIAN LAW REPORTS ALLAHABAD SERIES
Chancellor on 23.05.2023 for deciding
afresh. Post remand, the Registrar of the
University issued a letter on 25.07.2023
requiring all the parties to appear on the
date of hearing which was fixed for
11.08.2023.
The
Committee
of
Management filed its reply on 11.08.2023.

18. The Vice Chancellor on
17.08.2023 passed an order reinstating
fourth
respondent.
This
order
was
challenged
by
the
present
petitioner
through Writ-A No. 15912 of 2023. In the
said writ petition, the fourth respondent
took specific ground that writ petition was
not maintainable in view of alternative
remedy available under Section 68 of the
Act of 1973. The writ Court dealt with the
same and found the writ petition to be
maintainable
looking
to
the
factual
background of the case and allowed the
writ petition on 01.12.2023 and set aside
the order passed by Vice Chancellor on
17.08.2023 and remanded back the matter
for consideration afresh.

19.

The
Vice
Chancellor
constituted a Three Member Committee on
29.02.2024. The Vice Chancellor on the
report of inquiry committee passed the
order
impugned
on
23.06.2024
for
reinstating the fourth respondent and
providing all the consequential benefits.

20. The present writ petition has
been filed mainly on the ground that order
of Vice Chancellor dated 23.06.2024 does
not address the basic issue as to why a
person who lacks qualification of a
Principal can be appointed in an Institution.
The certificate submitted by him is forged
as it has not been issued by appointing
authority. Reliance has been placed by
fourth respondent on certificates dated
12.01.2015 and 23.07.2015 which have not
been issued by appointing authority which
is Committee of Management and they
have been issued by Principal, and there is
denial by Committee of Management of Sri
Ramanand Peeth Sanskrit Mahavidyalaya
Karnghanta, Varanasi as to appointment of
the fourth respondent in the Institution.
Moreover, no finding has been recorded by
Vice Chancellor despite direction by writ
Court on 01.12.2023 whether the Principal
of
Sri
Ramanand
Peeth
Sanskrit
Mahavidyalaya Karnghanta, Varanasi was
competent
to
issue
such
experience
certificate.

21. Sri Anil Tiwari, learned Senior
Counsel appearing for fourth respondent
has heavily relied upon the decision of
Apex
Court
rendered
in
case
of
Commercial
Steel
Limited
(supra)
wherein the Apex Court had held that a
writ
petition
can
be
entertained
in
exceptional circumstances where there is a
breach of Fundamental Rights, or violation
of principles of natural justice, or excess of
jurisdiction or a challenge to the vires of
the statute or delegated legislation.

22. Rebutting the argument, Sri
R.K.
Ojha,
learned
Senior
Counsel
appearing for the petitioner had submitted
that Apex Court had constantly laid
guidelines as to the entertainability of a
writ petition under Article 226 and the
instant case is covered under the principles
so laid down by Hon'ble Apex Court.
According to him, this is the fifth round of
litigation between the parties, and each
time
the
order
is
passed
by
Vice
Chancellor.
It
is
subjected
to
the
jurisdiction of the writ Court. On earlier
four occasions, the matter has been
remanded back to Vice Chancellor to
decide the issue as to the certificate issued
by
Sri
Ramanand
Peeth
Sanskrit
9 All. The C/M, Jubilee Sanskrit College Ballia & Anr. Vs. State of U.P. & Ors.
673
Mahavidyalaya Karnghanta, Varanasi. Till
date, the adjudication to the moot question
as to whether Principal of an Institution is
competent to issue such a experience
certificate has not been decided. The order
impugned also lacks adjudication by Vice
Chancellor despite repeated directions of
this Court. According to him, the petitioner
cannot be ousted on the ground of alternate
remedy as the Vice Chancellor has failed to
perform his duty and not complied the
directions of this Court issued in specific
terms.
The
proceedings
are
without
jurisdiction and thus the order is amenable
to the jurisdiction of this Court under
Article 226.

23. I have heard respective counsel
for the parties and perused the material on
record.

24. The question as regards the
maintainability of writ petition under
Article 226 of Constitution of India and
alternate remedy being not an absolute bar
had been under active consideration of
Hon'ble Apex Court since long.

25. The Constitution Bench in case
of A.V. Venkateswaran (supra) found
that there cannot be an absolute bar to a
writ petition under Article 226 in view of
statutory provision. With passage of time
much water has flown and the Hon'ble
Apex Court had laid down the principles
for the entertainment of the writ petition

26. What culls out from the decision
of Whirlpool Corporation (supra) that
three guiding principles where a writ petition
can be entertained and alternative remedy
will not operate as a bar are for the
enforcement of Fundamental Rights or where
there has been violation of principles of
natural justice or where the order or
proceedings are wholly without jurisdiction
or vires of Act is under challenge.

27. The Hon'ble Apex Court in
Godrej Sara Lee Ltd. (supra) went a step
further and distinguished between the concept
of "entertainability" and "maintainability" of
writ petition. A fine distinction has been
made by Their Lordships at the Apex Court
and held that real distinction between the two
ought not to be lost sight of. The Hon'ble
Apex Court held that objection as to the
maintainability goes to the root of the matter
and if such objections were found to be of
substance, the courts would be rendered
incapable of even receiving the lis for
adjudication. On the contrary, the question of
"entertainability" is entirely within the realm
of discretion of the High Court, writ remedy
being discretionary. A writ petition despite
being maintainable may not be entertained by
a Court for many reasons or relief and could
be refused to the petitioner, despite setting up
a sound legal point. The Court further held
that dismissal of a writ petition by a High
Court on the ground that the petitioner has
not availed the alternative remedy without,
however, examining whether an exceptional
case
has
been
made
out
for
such
entertainment would not be proper.

28. Thus, considering the above
dictum in the light of the present case, it would
be unjust to relegate the matter to Chancellor
under Section 68 of the Act of 1973 as on four
earlier occasions either the fourth respondent
or the petitioner has assailed the orders passed
by Vice Chancellor and in the earlier round of
litigation, similar stands was taken by fourth
respondent which was repelled by the Court
and the Vice Chancellor proceeded to
adjudicate the matter.

29. Taking the same ground would
be injustice and unnecessarily dragging the
674 INDIAN LAW REPORTS ALLAHABAD SERIES
matter. The dispute raised is only as to the
genuineness of experience certificate and
competence of issuing authority/Principal
is before this Court as well as it was before
the Vice Chancellor.

30. On the two occasions, the Vice
Chancellor has failed to address the real
issue as to whether the Principal was
competent enough to issue such experience
certificate
being
not
an
appointing
authority. He was required to adjudicate
whether an experience certificate could be
issued by a Principal of an Institution or by
the appointing authority.

31. The issue raised by Sri Ojha
goes to the root of the matter which the
Vice Chancellor has failed to address
despite the repeated remand orders passed
by this Court. The present writ petition
cannot be thrown away on the ground of
alternative remedy as has already been held
by Apex Court that it is not an absolute bar
and is maintainable under the guidelines
laid down by Apex Court.

32.

Reliance
placed
upon
Commercial Steel Limited (supra) by
respondent counsel also only fortifies the
principle laid down by Hon'ble Apex Court
in case of Whirlpool Corporation (supra)
which has been followed in subsequent
decisions.

33. Considering the facts and
circumstances of the case, I find that the
preliminary objection raised by counsel for
fourth respondent has no legs to stand and
the same stands overruled. The present writ
petition is maintainable under Article 226
of Constitution of India.

34. Put up this matter, as fresh, on
19th September, 2024 for further hearing.
35. Looking to the facts and
circumstances of the case and order passed
by Vice Chancellor/ respondent no. 2, the
order impugned dated 23.06.2024 shall
remain stayed till the next date of listing.
----------
(2024) 9 ILRA 674
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.09.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 1892 of 2023

Prakash Kumar ...Petitioner
Versus
D.G., Directorate of Medical Education and
Training & Ors. ...Respondents

Counsel for the Petitioner:
Digvijay Singh Yadav

Counsel for the Respondents:
Kshitij Mishra, Ramendra Kumar Yadav
Civil Law - Indian Contract Act, 1872 -
Section 171 - "educational certificates" as
lien - retention of original educational
certificates to secure bond amount -
Validity - "educational certificates" can
not
be
held
as
lien.
Educational
Certificates
not
being
a
marketable
commodity, is not subject to exercise of
any lien under Section 171 of the Indian
Contract Act, 1872 . Retention of original
educational certificates by the Medical
Institution to secure bond amount which a
candidate may be liable to pay, at the time
of withdrawal from the PG Diploma
course, cannot be sustained. Medical
College is bound to return the educational
certificates
to
the
candidate
after
verification of educational certificates is
complete and they are not required for the
said
purpose.
College
Administration
cannot retain the educational certificates
of the students.(Para 15, 16)