JUDGMENT D.P. Singh, J.
1. Heard Shri S.P. Singh along with Shri P.S. Chauhan for the petitioner. Shri Shashi Nandan, learned Senior Advocate along with Shri R.K. Ojha for the respondent No. 6. Shri Ravi Kant, learned senior Advocate along with Shri A.P. Paul for respondent No. 5 and Learned Standing Counsel for respondents No. 1, 2, 3 and 4
2. Prayag Mahila Vidyapith Degree College, Allahabad (here-in-after referred to as the College) is an affiliated Degree College of Chatterpati Sahu Ji Manaraj University, Kanpur. Substantive vacancies on the post of Principal in various institutions including the college was duly intimated to the U.P. Higher Education Services Commission, which advertised the posts vide its advertisement No. 25. The petitioner, who is a first class through out and is also a Ph.D. holder, applied in pursuance thereof and after being selected, the Director of Higher Education, Allahabad, issued a placement order dated 31.8.2002 appointing her as Principal of the said College. The petitioner joined the College on 2.9.2002 on probation for a period of ore year. It appears that this probation was further extended for one year. It is alleged that she was coerced into submitting a letter of resignation dated 27.9.2003 to the Manager of the college but, it is stated, on the very next day, i.e. 28.9.2002 she withdrew this resignation through another letter served on the Manager. It is alleged that she continued to work as Principal of the Institution till 13.10.2003 whereafter she was not allowed to work on the alleged basis that the Management had passed a resolution on 11.10.2003 accepting her resignation. In spite of approaching the Director of Higher Education, the petitioner did not get any relief forcing her to file writ petition No. 52674 of 2004, which was finally disposed off, after hearing the parties, vide order dated 16.12.2003 that the petitioner may approach the appropriate forum for decision of the factual controversy with regard to withdrawal of her resignation. In pursuance of the writ order, the petitioner approached the Vice Chancellor, Chattarpati Sahu Ji Maharaj University, Kanpur through a detailed representation. The Vice Chancellor after hearing the parties passed a detailed order dated 27.2.2004 holding that the petitioner had withdrawn her resignation on 28.9.2003 and acceptance of the resignation was subsequent to the withdrawal. The Committee of Management made a reference to the Chancellor under Section 68 of the State Universities Act 1973 wherein the order of the Vice Chancellor was affirmed vide order dated 9.6.2004 The Committee of Management challenged the aforesaid decision in writ petition No. 40551 of 2004, which is still pending but no interim orders have been passed.
3. Meanwhile, it appears, that after the acceptance of the resignation, Dr. Shakti Pandey approached the Director of Education who appointed her in the alleged vacancy of the petitioner. Dr. Shakti Pandey filed original suit No. 594 of 2004 initially claiming the relief of declaration for declaring the withdrawal letter of the petitioner dated 28.9.2003 as forged thus void and also for injunction directing the petitioner, the Management etc. not to interfere in her functioning as Principal of the College.
4. During the pendency of the suit, she made an application for amendment under Order 6 Rule 17 and added the relief for declaring the orders of the Vice Chancellor and the Chancellor as void ab-initio being passed against principles of natural justice. Along with the suit an application for temporary injunction was also moved, which has been allowed by the trial court vide its order dated 14.10.2004 whereby the petitioner, the Management etc. have been restrained from interfering in the functioning of Dr. Shaki Pandey. An appeal against the aforesaid order has been filed, which remains pending till date, thus to cut short her harassment, the petitioner has approached this court through this petition for quashing of the order of the trial court and for quashing the entire proceedings of the suit.
5. The counsel for the petitioner has vehemently urged that the suit was barred by Section 69 of the State Universities Act. He has also urged that the Management and Dr. Shakti Pandey having failed to obtain any interim orders in the pending writ petition No. 40551 of 2004 have devised a novel method to overcome the orders of the Vice Chancellor and Chancellor through the present collusive suit though Dr. Shakti Pandey had absolutely no right to the post. In the end, however, it has been urged that the interim injunction order is hit by the proviso to Rule 2- Sub-rule 2 of Order XXXIX amended n its application to the State of U.P.
6. Shri Shashi Nandan, learned senior advocate, appearing for Dr. Shakti Pandey and Shri Ravi Kant, learned senior advocate appearing for the Management have in tandem urged that the orders of the Vice Chancellor and Chancellor are based on a void document and further the orders have been passed without hearing Dr. Shakti Pandey, therefore, it was not binding on her.
7. Before dealing with the issue as to whether the suit was barred, in the facts of this case, it appears appropriate to first examine whether the court was justified in granting temporary injunction.
8. By U.P, Act No. 57 of 1976 the following proviso was added in Sub-rule 2 of Rule 2 of Order XXXIX:
"Provided that no such injunction shall be granted-
(a)................
(b) to stay the operation of an order for transfer, suspension, reduction in rank, compulsory retirement, dismissal, removal or otherwise termination of service of, or taking charge from any employee including any employee of the Government, or
(c)................
(d)................
(e)................
(f)................
(g).................
(h) in any matter where a reference can he made to the Chancellor of a University under any enactment for the time being in force;
and any order for injunction granted in contravention of these provisions shall be void "
9. A bare perusal of the proviso (b) shows that no injuncton can be granted to stay the operation of an order of taking charge from an employee. The order of the Vice Chancellor as up held by the order of the Chancellor issues a mandate in favour of Dr. Tripathi for taking charge of the post of Principal of the College. The operative portion of the order of the Vice Chancellor, as loosely translated in English reads as under:
"For the reasons above, Committee of Management, Prayag Manila Vidyapeeth Degree College, Allahabad is directed to forthwith hand over the charge of the post of Principal of Prayag Mahila Vidyapeeth Degree College, Allahabad to Dr. (Smt). Rajni Tripathi."
10. The trial court has issued an injunction restraining the Management from taking charge from Dr. Shakti Pandey and handing it over to Dr. Tripathi This injunction is clearly hit by Clause (b) and, therefore, in view of the proviso the order is void.
11. There is yet another striking feature of this ease. The Management and Dr. Pandey, in unison contend, that the resignation was accepted on 11.10.2004, but they have been unable to deny or explain how the petitioner continued to discharge the functions of the Principal even on 12.10.2004. It is a fact that the petitioner, in her capacity as Principal of the College discharged her duties and took part in conducting the examinations of the Union Public Service Commission.
12. The counsel for the petitioner, however, has urged that this writ petition is not maintainable because the petitioner is already pursuing the remedy of appeal before the Subordinate Courts. It is trite that where a party is already pursuing a remedy, the writ court would be very loathe to interfere in such a fact situation, but it is not a absolute rule. Where an order on the face of record is void and the party, even after obtaining orders in her favour after fighting a pitched battle, is being made to suffer for no apparent fault on her part, the court would be failing in its duty and obligation in refusing to follow the path of justice, equity and fair play. If the order is void, for all purposes it is non-existant thus, it has to be quashed, especially in the present set of facts.
13. It has been strenuously urged on behalf of respondents that the orders of the Vice Chancellor and Chancellor were passed without hearing Dr. Shakti Pandey thus it would not bind her. From the facts noticed above, it s apparent that the right of Dr. Shakti Pandey, if any, is contingent only upon the right of the petitioner. The Committee of Management, which had allegedly accepted the resignation, had fought tooth and nail before the Vice Chancellor and Chancellor but failed. The grounds which have been taken by Dr. Pandey in the suit are those very grounds that the management had urged before the Chancellor and Vice Chancellor and also before the writ court and failed. The interest of Dr. Pandey and the management is common and no fresh ground or facts have been alleged in the suit. From the appointment letter of Dr. Shakti Pandey, which is available on record, it is evident that the Director of Higher Education has appointed Dr. Shakti Pandey in the alleged vacancy caused by resignation of the petitioner, therefore, the appointment of Dr. Pandey is dependent upon the resignation of Dr. Tripathi, which has already been held by the two authorities that it was withdrawn before it was accepted. The necessary legal consequence read together with the mandate of the order of the Vice Chancellor indicates only one result and that is the petitioner legally occupies the post of Principal, therefore, the appointment of Dr. Shakti Pandey has to go, until of course the Trial Court fines it otherwise while disposing off the suit.
14. Since I have upheld the last contention of the learned counsel for the petitioner that temporary injunction granted in favour of Dr. Pandey is hit by the U.P. Amendment, consequently it is void, it does not appear appropriate to deal with the other arguments and it would be open to the petitioner to make an application under Order 7 Rule 11 for dismissal of the suit, if it is so advised.
15. For the reasons given above, this petition succeeds and is allowed and the impugned order dated 14.10.2004 is hereby quashed with a further direction to the Management and the Director of Higher Education to forthwith hand over the charge of the post of Principal to the petitioner. No order as to costs.