B. M. Lal, J. - (1.) AT the very outset, without entering into the merits of the case Sri V. K. Upadhyay, learned counsel representing Banaras Hindu University (for short "University") and Sri S. K. Pandey, learned counsel representing respondent No. 4, raised a preliminary objection at this stage of admission that the grounds and plea as raised by the petitioner in writ petition are available to him to be raised by means of a statutory representation to the Visitor of the University under the Provisions of Section 5 (7) of the Banaras Hindu University Act (hereinafter referred to as 'the Act") and it is the Visitor who has to decide the matter in issue involving orders passed by the Executive Council or any other authority empowered under the Act. Therefore, it is submitted that the writ petition as framed and filed suffers from the doctrine of exhaustion of alternative remedy.
(2.) TO appreciate the preliminary objection as raised by the learned counsel appearing for the University and respondent No. 4, it is necessary to give short facts leading to this writ petition. By this writ petition under Article 226 of the Constitution, the petitioner, Lalji Prasad Gupta has challenged order dated 19.5.1995 (Annexure-5 to the writ petition) whereby the respondent No. 4 has been appointed on the post of Reader and order dated 20.12.1994, contained in Annexure-6 to the writ petition, whereby the respondent No. 4 has been given appointment as Reader with a retrospective date, i.e., 27.7.1983 in the University. In nutshell, the petitioner's case is that he being B.Sc., A.B.M.S. and Ph. D. is fully qualified to be appointed as Head of the Department in the institution concerned, being run and managed by the University. He was initially appointed as Lecturer in August, 1968 and subsequently he was promoted as Reader under merit-cum-promotion scheme on 5.3.1984. However, by the order dated 19.5.1992, contained in Annexure-5 to the writ petition, which is under challenge, abruptly and without any opportunity of being heard to the petitioner, respondent No. 4 was given appointment to the post of Reader with retrospective date. In this respect, it is submitted that the University had no jurisdiction to pass the impugned order appointing and giving seniority to respondent No. 4 with retrospective effect from a very early date. It is also contended that without any notice or opportunity of hearing to the petitioner and without giving any reason whatsoever, another impugned order was passed on 20.12.1994 according to which respondent No. 4 has been given appointment as Reader w.e.f. 27.7.1983.
(3.) DR. Padia, learned counsel appearing for petitioner in reply to the preliminary objection, submitted that both the orders referred to above, which are under challenge in this writ petition, have been passed by way of review by the authorities and, as such, are without jurisdiction, inasmuch as in the absence of any statutory provision a statutory authority cannot review its order. For this proposition of law, the learned counsel cited numerous decisions of this court and the Apex Court and in this background, he submitted that the orders impugned being without jurisdiction, alternative remedy, if any, is not an absolute bar for exercise of jurisdiction under Article 226 of the Constitution. The argument advanced by Dr. Padia as a proposition of law that in the absence of any statutory provision a statutory authority has no power and jurisdiction to review its order and if such an order is passed, the same renders a nullity has no two opinion. This being a settled principle of law, no precedent in this regard needs to be mentioned and discussed.;