- (1.) PETITIONER, Dr. N. K. Shah, by means of the present writ petition, has prayed for issuance of a writ in the nature of mandamus com manding the respondents to treat the petitioner's personal promotion dated 26-12-1984 given to respondents 4 and 5 as ineffective and inoperative and to treat the petitioner as senior to respondents 4 and 5 in the Economics Depart ment of the University. It has been further prayed that by means of a writ in the nature of mandamus, the Chancellor of Kumaon University be directed to decide the representation of the petitioner dated 21-5-1985 forthwith.
(2.) IT has been averred in para 39 of the writ petition that the petitioner has availed the remedy available to him under Section 68 of the U. P. State University Act and in spite of his best efforts, and the orders issued by the Court, the representation of the petitioner was not being decided. Section 68 of the U. P. State Universities Act reads as under : "if any question arises whether any person has been duly elected or appointed as on is entitled to be a member of any authority or other body of the University or whether any decision of any authority or officer of the University (including any question as to the validity of a Statute, Ordinance or Regulations not being a Statute or Ordinance approved by the State Government or by the Chancellor) is in conformity with this Act or the Statutes or the Ordinance made thereunder the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final. " From a perusal of the provisions contained in Section 68 of the said Act, it is evident that in case any representation has been made under Section 68, the order passed by the Chancellor shall be final. From the averments made in the writ petition and the relief sought, it is evident that the order of the Chancellor has not been received, hence a preliminary objection was taken by the respondents that as the alternative remedy provided under Section 68 has not been exhausted, the petition is not at all maintainable. It has been brought to the notice of this Court by the learned Counsel for the petitioner that earlier, this Court has directed the Chancellor to dispose of the representations but as the representations were not decided, it should be presumed that the Chancellor has failed to carry out the statutory duty in accordance with the provisions contained in Section 68 of the U. P. State Universities Act and it should be deemed that he refused to pass any such order, hence in that situation, there would be no bar for this Court to hear the parties on the merit of the writ petition and pass final orders.
(3.) IN this connection, reliance was placed by the learned Counsel in the case of Atul Goyal v. Registrar, University of Gorakhpur and others, 1985 UPLBEC 441, wherein Division Bench consisting of Hon'ble O. P. Saxena and Hon'ble I. P. Singh, JJ. indicated : "the petitioner was selected for admission to B. Tech. Course of Harcourt Butler Technological Institute, Kanpur and his provi sional admission was subject to his production of a certificate of having passed B. Sc. Examination. The rule regarding exhaustion of statutory remedies before a writ may be granted in a rule of policy, convenience and discretion rather than rule of law. It does not oust the jurisdiction of the High Court, but it is only one of the circumstances that the Court should take into consi deration exercising its discretionary jurisdiction. A representation to the Chancellor under Section 68 of the U. P. State Universities Act is not a speedy remedy cannot be considered an efficacious remedy. There was a reasonable apprehension of peti tioner's admission being cancelled on his non-production of the certificate. In the circumstances it cannot be accepted that the writ of certiorari should be refused as the petitioner failed to take recourse to representation under Section 68 of the U. P. State Universities Act. " A reference was also made to a decision of Supreme Court reported in 1980 SC 214. This precedent is not relevant for this case, inasmuch as the provision of Section 68 of the U. P. State Universities Act, was neither under consideration before the High Court nor before the Supreme Court. Mr. Nathani, learned Counsel appearing for the petitioner cited the case of Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur, U. P. and others, 1987 (4) SCC 525. Wherein the Vice-Chancellor has re viewed his earlier order, when no such power is vested in him under the U. P. State Universities Act, 1973 or of the Statutes of the University made there under by the University. In the light of the aforesaid circumstances, it was held ; that the Vice-Chancellor acted wholly without jurisdiction in reviewing his/her earlier order. The review order of the Vice-Chancellor was, therefore, a nullity. The review order of the Vice-Chancellor could surely be challenged before the High Court by a petition under Article 226 of the Constitution, and the same cannot be dismissed by the High Court on the ground that an alter native remedy was available to the appellant under Section 68 of the U. P. State Universities Act. Alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly with out jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of alternative remedy.;