Heard Sri Sharad Pathak, learned counsel for the petitioner, learned Standing Counsel for the opposite party Nos.1, 3 & 5, Sri Prashant Kumar Tripathi, learned counsel for the opposite party Nos.2, 6, 7, 9 & 11, Sri Rakesh Kumar Srivastava, learned counsel for the opposite party No.8 and Pt. S. Chandra, learned counsel for the opposite party No.10.
By means of this writ petition, the petitioner has assailed the order dated 02.01.2021 passed by the Vice-Chancellor, Dr. Ram Manohar Lohia Avadh University, Ayodhya, Faizabad declaring that the petitioner does not possess the minimum qualification for the post of Principal.
Sri Sharad Pathak, learned counsel for the petitioner has submitted that the Vice-Chancellor has got no power to pass such order inasmuch as instead of deciding the issue of seniority he has declared that the petitioner is not qualified for the post of officiating Principal as he is not having required Academic Performance Index (in short API).
Learned counsel for the University and the learned counsel for the opposite party No.10, Pt. S. Chandra, have raised preliminary objection regarding maintainability of the writ petition by submitting that the petitioner has got a statutory remedy under Section 68 of U.P. State Universities Act, 1973 (here-in-after referred to as the "Act, 1973") by filing reference before the Chancellor. As per the aforesaid counsels for the opposite parties, entire controversy in question may be adjudicated by the Chancellor in the reference. They have further submitted that in view of the settled proposition of law by the Hon'ble Supreme Court as well as this Court, the alternative statutory remedy cannot be circumvented.
Pt. S. Chandra, learned counsel for the opposite party No.10 has drawn attention of this Court towards the dictum of Hon'ble Supreme Court in re: Delhi Dayalbagh House Building Society vs. Registrar, Cooperative Societies and others reported in (2019) 4 SCC 429, whereby the Hon'ble Supreme Court vide para-3 of the judgment has held as under:-
"3. Since the appellant has an alternative remedy of statutory appeal against the order impugned dated 2-7-2013 under the 2003 Act taking note of the view expressed by this Court in Whirlpool Corpn. v. Registrar of Trade Marks, Mumbai and Others 1998 (8) SCC 1, we are not inclined to entertain the appeal with liberty to the appellant to avail the statutory remedy of appeal available to him under the law. Since the instant appeal remains pending in this Court for quite some time, it is considered appropriate that if the appeal before the appellate authority is preferred against the order impugned dated 2-7-2013 within a period of 60 days from today, it may be treated to be within a period of limitation and the authority may examine and decide it on merits after affording opportunity of hearing to the parties without being influenced/inhabited by any observations if made by us in the proceedings."
Pt. S. Chandra, learned counsel for the opposite party No.1o has also placed reliance upon the judgment and order dated 08.07.2014 passed by the Division Bench of this Court in re: Dr. Harish Chandra Lal vs. Vice-Chancellor, Dr. Ram Manohar Lohia Avadh University, Faizabad and others, passed in Writ Petition No.1510 (S/B) of 2013, whereby more or less identical issue has been referred for filing a reference under Section 68 of the Act, 1973. In another matter, the Division Bench of this Court in re: Dr. Smt. Usha Singh vs. State of U.P. & 6 others, vide judgment and order dated 01.03.2016 passed in Writ-A No.9439 of 2016, relegated the petitioner to file a reference before the Chancellor.
Considering the facts and circumstances of the issue in question and considering the preliminary objection regarding maintainability of the writ petition, I hereby dispose of this writ petition finally at the admission stage permitting the petitioner to approach the Chancellor, Dr. Ram Manohar Lohia Avadh University, Ayodhya, Faizabad by making reference/ representation under Section 68 of the Act, 1973 within a period of two weeks from today. If such reference/ representation under Section 68 of the Act, 1973 is filed by the petitioner, the same shall be considered and decided, strictly in accordance with law, after affording an opportunity of hearing to all the contesting parties, expeditiously, say within a period of two months from the date a certified copy of this order along with the reference/representation is filed and the decision thereof shall be intimated to the concerning parties forthwith.
In view of the above, the instant writ petition is disposed of finally.
Order Date :- 25.1.2021 Suresh/