PETITIONER:
DR. SMT. KUNTESH GUPTA
Vs.
RESPONDENT:
MANAGEMENT OF HINDU KANYA MAHAVIDYALAYA, SITAPUR (U.P) &ORS.
DATE OF JUDGMENT25/09/1987
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
MISRA RANGNATH
CITATION:
1987 AIR 2186 1988 SCR (1) 357
1987 SCC (4) 525 JT 1987 (3) 670
1987 SCALE (2)667
ACT:
Constitution of India-Art. 226 When an authority acts
wholly without jurisdiction, the High Court should not
refuse to exercise its jurisdiction under Art. 226 on the
ground of existence of an alternative remedy.
Administrative Law-A quasi-judicial authority cannot
review its own order unless power of review is expressly
conferred on it by the statute under which it derives its
jurisdiction.
U.P. State Universities Act, 1973-The Vice Chancellor
in considering an order of dismissal of a principal acts as
a quasi-judicial authority.
HEADNOTE:
The appellant was the principal of an institution, the
management of which had been entrusted to an Authorised
Controller under s. 58 of the U.P. State Universities Act,
1973. Following upon certain disputes and differences with
regard to the management of the institution, the appellant
was suspended by the Controller but the order of suspension
was stayed by the Vice Chancellor. The Controller, after
holding an ex-parte inquiry, dismissed the appellant from
service in exercise of the power vested in him by the
University Statute 17.06 which provided the giving of an
opportunity of being heard to the teacher concerned and
prescribed a procedure for inquiry. The Vice Chancellor, on
the ground that the charges against the appellant did not
warrant her dismissal, disapproved the order of dismissal
and directed reinstatement of the appellant, granting
liberty to the Controller to impose a lesser punishment on
her. The Controller passed an order allowing the appellant
to function as the Principal but at the same time imposing
various restraints and constraints on her powers and duties,
which was challenged by her in a petition filed under Art.
226. The High Court quashed the said order with liberty to
the Controller to impose a minor penalty on the appellant in
accordance with the order of the Vice Chancellor. Three days
before the High Court delivered its judgment, the Vice
Chancellor had reviewed her earlier order at the instance of
H
358
the appellant, and, on the basis of two reports of the Joint
Director of Higher Education alleging that the appellant had
committed grave financial irregularities, had approved the
order of dismissal passed earlier by the Controller; but the
Controller, who was a party to the writ petition did not
bring it to the notice of the High Court. The appellant
challenged the aforesaid order of the Vice Chancellor passed
in review by a petition under Art. 226 which was dismissed
by the High Court on the around of existence of an
alternative remedy under s. 68 of the U.P. State
lUniversities Act.
Allowing the appeal,
^
HELD: It is well established that an alternative remedy
is not an absolute bar to the maintainability of a writ
petition. When an authority has acted wholly without
jurisdiction, the High Court should not refuse to exercise
its jurisdiction under Art. 226 on the ground of existence
of an alternative remedy. [362C-D]
In the instant case, the Vice Chancellor had no power
of review and the exercise of such a power by her was
absolutely without jurisdiction. Indeed, the order passed by
the Vice Chancellor on review was a nullity; such an order
could surely be challenged before the High Court by a
petition under Art. 226 and, in our opinion, the High Court
was not justified in dismissing the writ petition on the
ground that an alternative remedy was available to the
appellant under s. 68 of the U.P. State Universities Act.
[362D-E]
2. It is now well established that a quasi judicial
authority cannot review its own order unless the power of
review is expressly conferred on it by the statute under
which it derives its jurisdiction. The Vice Chancellor in
considering the question of approval of an order of
dismissal of the Principal, acts as a quasi-judicial
authority. It is not disputed that the provisions of the
U.P. State Universities Act, 1973 or of the Statutes of the
University do not confer any power of review on the Vice
Chancellor. In the circumstances, it must be held that the
Vice Chancellor acted wholly without jurisdiction in
reviewing her order dated January 24, 1987 by her order
dated March 7, 1987. [361H; 362A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2468 of
1987
From the Judgment and order dated 13.5.1987 of the
Allahabad High Court in W.P. No. 1822 of 1987.
359
R.K. Jain and R.P. Gupta for the Appellant.
S.N. Kacker, Dileep Tandon, R.B. Mehrotra, P.N. Bhatta
and R.A. Gupta for the Respondents
The Judgment of the Court was delivered by
DUTT, J. Both the parties have made elaborate
submissions at the preliminary hearing of the special leave
petition filed by the appellant Dr. Smt. Kuntesh Gupta. The
special leave is granted and we proceed to dispose of the
appeal on merit.
The appeal is directed against the judgment of the
Allahabad High Court dismissing the writ petition of the
appellant on the ground of existence of an alternative
remedy under section 68 of the U.P. State Universities Act,
1973.
The appellant, Dr. Smt. Kuntesh Gupta, was appointed
the Principal of Hindu Kanya Mahavidyalaya, Sitapur, U.P.,
on June 4, 1984 and was confirmed in the said post on May 4,
1985. In view of existence of two unrecognised rival
Committees of Management the State Government, in exercise
of its power under section 58 of the U.P. State Universities
Act, appointed one of the Additional District Magistrates of
the District the Authorised Controller of the Institution.
The Authorised Controller was entitled to exercise all the
powers of the Committee of Management.
It appears that the appellant, as the Principal of the
Institution, and the Authorised Controller could not see eye
to eye with each other and there were disputes and
differences between them in regard to the management of the
Institution. The differences between them reached to such a
degree that the Authorised Controller by his order dated
January 27, 1986 suspended the appellant. The order of
suspension was, however, stayed by the Vice-Chancellor of
the University on January 29, 1986. After hearing the
appellant and the Authorised Controller, the Vice-Chancellor
maintained the stay order. Thereafter, the Authorised
Controller held an ex parte enquiry and by his order dated
April 21, 1986 dismissed the appellant from service in
exercise of the powers of the Managing Committee vested in
him by Statute 17.06 of the Statutes of the University.
Statute 17.06 provides for the giving of an opportunity of
being heard to the teacher concerned and prescribes a
procedure for enquiry which, according to the appellant, was
not followed by the Authorised Controller. A copy of
360
the said order of dismissal was sent to the Director of
Education and to the Vice-Chancellor for approval, as
required under Statute 17.06(3).
The Vice-Chancellor after hearing the parties, by her
order dated January 24, 1987 disapproved the order of
dismissal of the appellant on the ground that the charges
against the appellant did not warrant her dismissal from
service and directed that the appellant should be allowed to
function as Principal of the College forthwith.
After the said order was passed by the Vice-Chancellor
reinstating the appellant and granting liberty to the
Authorised Controller to impose lesser punishment on the
appellant, if deemed necessary, the Authorised Controller
without passing any lesser punishment, by his order dated
January 27, 1987 allowed the appellant to function as the
Principal, but put various restraints and constraints on her
powers and duties as Principal and directed her to vacate
the quarters in which she was residing. Feeling aggrieved,
the appellant moved the High Court under Article 226 of the
Constitution of India against the imposition of such
restraints and constraints on her powers and duties as the
Principal of the College. The High Court, after considering
the fact and circumstances of the case, by its judgment
dated March 10, 1987 quashed the said order dated January
27, 1987 of the Authorised Controller and directed him to
allow the appellant to function as the full-fledged
Principal of the Institution in accordance with law. The
High Court further granted liberty to the Authorised
Controller to go ahead with the imposition of minor penalty
on the appellant in accordance with law and as provided in
the said order of the Vice-Chancellor.
It appears that while the matter was pending before the
High Court, at the instance of the appellant, the Vice-
Chancellor passed an order dated March 7, 1987, that is to
say, three days before the date of the judgment of the High
Court, reviewing her earlier order disapproving the
dismissal of the appellant from service. By the order dated
March 7, 1987 passed on review, the Vice-Chancellor approved
the order of the Authorised Controller dismissing the
appellant from service on the basis of two reports of the
Joint Director of Higher Education, U.P., one dated August
1, 1986 and the other dated July 18, 1986, alleging great
financial irregularities committed by the appellant.
Although the said order dated March 7, 1987 was passed by
the Vice-Chancellor on review three days before the delivery
of the judgment by the High Court, no steps were taken by
the Authorised Controller, who was a party in the writ
petition, to bring to the notice of the High Court the said
order of the Vice-Chancellor dated March 7, 1987
361
It is alleged by the appellant that the said order was
passed by the Vice-Chancellor in collusion with the
Authorised Controller with a view to rendering the writ
petition of the appellant and also the judgment of the High
Court infructuous. While we reject the allegation of the
appellant that the said order was passed by the Vice-
Chancellor in collusion with the Authorised Controller, for
there is no material whatsoever in support of that
allegation, we are of the view that the Authorised
Controller should have brought to the notice of the High
Court the order of the Vice-Chancellor passed on review.
Be that as it may, the appellant again filed a writ
petition under Article 226 of the Constitution of India
against the said order dated March 7, 1987 of the Vice-
Chancellor passed on review. The High Court, however, took
the view that the impugned order could be challenged on a
reference to the Chancellor of University under section 68
of the U.P. State Universities Act, 1973 and, accordingly,
dismissed the writ petition on the ground of existence of an
alternative remedy. Hence this appeal.
It has been strenuously urged by Mr. Jain, learned.
Counsel appearing on behalf of the appellant, that the Vice-
chancellor had no power of review under the Statutes of the
University or under the U.P. State Universities Act, 1973
and, as such, the Vice-Chancellor acted wholly without
jurisdiction in entertaining an application for review filed
by the Authorised Controller. On the other hand, it is
submitted by Mr. Kacker, learned Counsel appearing on behalf
of the Vice-Chancellor, that as the two reports dated August
1, 1986 and July 18, 1986 of the Joint Director of Higher
Education, U.P., alleging certain grave financial
irregularities, were not before the Vice-Chancellor, the
Vice-Chancellor was entitled to review her order and after
considering the said reports reviewed her order and approved
the order of dismissal of the appellant from service.
Further, it is submitted by the learned Counsel that the
High Court was justified in not entertaining the writ
petition of the appellant, as there was an alternative
remedy under section 68 of the U.P. State Universities Act
and the impugned order could be challenged before the
Chancellor of the University on a reference of the question
to the Chancellor under the provision of section 68.
It is now well established that a quasi judicial
authority cannot review its own order, unless the power of
review is expressly conferred on it by the statute under
which it derives its jurisdiction. The Vice-Chancellor in
considering the question of approval of an order of
362
dismissal of the Principal, acts as a quasi judicial
authority. It is not disputed that the provisions of the
U.P. State Universities Act, 1973 or of the Statutes of the
University do not confer any power of review on the Vice-
Chancellor. In the circumstances, it must be held that the
Vice-Chancellor acted wholly without jurisdiction in
reviewing her order dated January 24, 1987 by her order
dated March 7, 1987. The R said order of the Vice-Chancellor
dated March 7, 1987 was a nullity.
The next question that falls for our consideration is
whether the High Court was justified in dismissing the writ
petition of the appellant on the ground of availability of
an alternative remedy. It is true that there was an
alternative remedy for challenging the impugned order by
referring the question to the Chancellor under section 68 of
the U.P. State Universities Act. It is well established that
an alternative remedy is not an absolute bar to the
maintainability of a writ petition. When an authority has
acted wholly without jurisdiction, the High Court should not
refuse to exercise its jurisdiction under Article 226 of the
Constitution on the ground of existence of an alternative
remedy. In the instant case., the Vice-Chancellor had no
power of review and the exercise of such a power by her was
absolutely without jurisdiction. Indeed, the order passed by
the Vice-Chancellor on review was a nullity; such an order
could surely be challenged before the High Court by a
petition under Article 226 of the Constitution and, in our
opinion, the High Court was not justified in dismissing the
writ petition on the ground that an alternative remedy was
available to the appellant under section 68 of the U.P.
State Universities Act.
As the impugned order of the Vice-Chancellor is a
nullity, it would be a useless formality to send the matter
back to the High Court for disposal of the writ petition on
merits. We would, accordingly, quash the impugned order of
the Vice-Chancellor dated March 7, 1987 and direct the
reinstatement of the appellant forthwith to the post of
Principal of the Institution. The judgment of the High Court
is set aside and the appeal is allowed. There will, however,
be no order as to costs.
We, however, make it clear that the respondents will be
at liberty to initiate a departmental proceeding against the
appellant, if they so think fit and proper, on the basis of
the allegations as made in the said reports of the Joint
Director of Higher Education, U.P.
H.L.C. Appeal allowed.
363