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Judgment
O.P. Garg, J.—By means of this writ petition under Article 226 of the Constitution, the order dated 18698, Annexure 40 to the writ petition, passed under Section 2(13) of the U.P. State Universities Act, 1973 (hereinafter referred to as ''the Act''), by Sri Ramesh Kumar Misra, ViceChancellor, Gorakhpur University, recognising the Committee of Management, of which S/Sri Nar Singh Narain Pandey and Amar Nath Misra, respectively are President and Manager, elected in the meeting of 1891997, has been challenged and it is prayed that it may be quashed. The consequential order of me same date passed by the District Inspector of Schools attesting the signatures of Amar Nath Misra is also sought to be quashed with further prayer that the respondents be restrained from interfering with the functioning of the petitioner No. 2 Dr. Balram Bhatt as Manager of the Committee of Management which is petitioner No. 1.
Heard Sri Ashok Khare, assisted by Sri S.C. Dwivedi learned Counsel for the petitioners and Sri R.N. Singh, assisted by Sri VP. Sahi, learned Counsel for the respondents.
Sri Ashok Khare, learned Counsel for the petitioners urged that the ViceChancellorrespondent No. 2 has committed a grave error in passing the impugned order dated 1861998 as he has recognised and permitted unauthorised persons, namely, Amar Nath Misra, Nar Singh Narain Pandey and Anil Kumar Ghosh, whose names even do not find a place in the list of members of the Society, issued by the Assistant Registrar, Chits, funds and Societies and by excluding the petitioner No. 2, who has been held to be the member of the Society by the decision of this Court, which has been finally approved by the Hon. Supreme Court. Learned Counsel took me through the various documents, including decisions of this Court as well as Supreme Court.
Sri R.N. Singh, learned Counsel for the respondent Nos.7 and 8 urged that he has abstained to file a counteraffidavit purposely in view of the fact that the present petition is not maintainable on account of the availability of alternative and efficacious remedy under the provisions of Section 68 or the Act. It was prayed that the writ petition being not maintainable, should be dismissed in limine.
I have given thoughtful consideration to the matter. There is no doubt about the fact that the apex Court has in a number of cases laid down that merely on the ground that an alternative remedy is available, the High Court need not throw the petitioner under Article 226 of the Constitution. Sri R.N. Singh, learned Counsel for the contesting respondents also frankly conceded that there are some cases in which, unmindful of the bar of alternative remedy, petitions under Article 226 of the Constitution may be entertained by this Court, in exercise of its plenary jurisdiction to do complete justice in the matter, but certainly, there are certain parameters beyond which this Court cannot go. I, therefore, proceed to decide the preliminary objection taken by Sri R.N. Singh that since the petitioners have an alternative remedy, under Section 68 of the Act and unless this remedy is exhausted, the jurisdiction of this Court under Article 226 cannotbeinvoked.
Sri Ashok Khare, learned Counsel for the petitioners did not contest the point that an alternative remedy under Section 68 is very much available to the petitioners, but according to him, the present is a case in which exceptional circumstances exist to invoke the jurisdiction of this Court. In support of his contention, Sri Khare placed reliance on the two decisions of the Supreme Courtthe first is D. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya Sitapur (UP) & Ors., AIR 1987 SC 2186 and the other is Dr. Bal Krishna Agarwal v. State of U.P. & Ors. (1995)1 SCC 614.
I have studied both these decisions with all care and circumspection. In Dr. Kuntesh Gupta''s case (supra) it was held that bar of alternative remedy would not apply where the concerned authority has acted wholly without jurisdiction. That was a case where the ViceChancellor who had no power of review under the law had acted without jurisdiction in reviewing the order refusing to grant approval to the order of dismissal of a Principal of the College. It was held that since the order of the ViceChancellor was a nullity, the petition under Article 226 of the Constitution would be maintainable and the bar of Section 68 of the Act would not apply. In Bal Krishna Agarwal''s case (supra), there was a dispute of seniority of University Professors. The writ petition was dismissed on the ground of non exhaustion of alternative remedy. It was held that it was not proper to dismiss the petition on this ground, particularly when the petition was kept pending for more than 5 years and the point involved was a pure question of law, which would, in any case, have come before the High Court. The observations of the apex Court in the aforesaid two decisions are not of universal application. A ratio decidendi in a case cannot be taken into consideration in isolation. It has to be read in the context and the background of the facts in the wake of which a particular decision has been made. In the first case of Dr. Smt. Kuntesh Gupta (supra), the order of ViceChancellor was held to be nullity and in the second case of Bal Krishna Agarwal, the writ petition was kept pending by the Supreme Court for a long period of five years, parties had joined issues before the Court and at the fag end of hearing, the petition was dismissed without considering the merits of the case on the ground of availability of alternative remedy not taking into consideration that only a pure question of law was involved and ultimately the matter has to be decided one way or the other by the High Court. The situations which appeared in the aforesaid two cases, are not present in the instant case.
There is no doubt about the fact that it is the ViceChancellor and ViceChancellor alone who is empowered to recognise a Committee of Management of a PostGraduate College under Section 2(13) of the Act. The ViceChancellorrespondent No. 2, therefore, had the jurisdiction and authority to pass an appropriate order in the present case. The order passed by the respondent No. 2 cannot be said to be nullity. Not only this, it is a fresh petition. No counteraffidavit has been filed and the preliminary objection of nonexhaustion or alternative remedy has been raised at the earliest opportunity. Therefore, the two rulings referred to above, relied upon by the learned Counsel for the petitioners are no help or assistance to him.
Now, the moot point for consideration is: whether the present writ petition is barred on account of the provisions of Section 68 of the Act. For the better understanding and appreciation of the legal objection raised by the respondents, it would be proper to cull out the relevant provisions of Section 68 of the Act:
"Reference to Chancellor.If any question arises........whether any decision of any authority or officer of the University......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:
Provided.....
Provided further that the Chancellor may in exceptional circumstances
(a).....
(b) where the matter referred relates to a dispute about the election and the eligibility of the person so elected is in doubt, pass such orders of stay as he thinks just and proper."
A bare look of the above provisions would indicate that the Chancellor has been vested with the wide powers to scrutinise or test the validity or otherwise of any order or decision of any authority or officer of the University which, of course, includes the ViceChancellor with reference to the Act, or the statues or the Ordinances made thereunder either suo moto or on a reference having been made by an aggrieved person/party. The order of the ViceChancellor passed under Section 2(13) of the Act is undoubtely subject to reference under Section 68 of the Act. This point came to be directly considered by a learned Single Judge of this Court in the case of Committee of Management Dharm Samaj College, Aligarh & Ors. v. ViceChancellor Agra University & Ors., (1994)3 UPBLEC 1666. In that case, it was held that the petitioners could invoke the jurisdiction under Section 68 of the Act of the Chancellor and challenge the order of the ViceChancellor on all the grounds as has been set forth in the writ petition. In that case, the earlier decision of this Court reported in (1990) 1 UPLBEC 215 Dr. Nand Kumar Singh v. Banaras Hindu University, Varanasi & Ors. and 1981 UPLBEC 356 Ved Pal Singh v. ViceChancellor, Meemt University, Meerut & Ors., were relied upon to hold that if effective, efficacious and alternative remedy is available then this Court should not exercise extraordinary jurisdiction under Article 226 of the Constitution. The decision of the learned Single Judge in Dharam Samaj College''s case (supra) was assailed in special appeal No. 697 of 1994. A Division Bench of this Court has dismissed the appeal by decision dated 7101994, reported in 1996 (Supp) AWC 15, Committee of Management, Dharam Samaj College, Aligarh & Ors. v. ViceChancellor, Agra University & Ors., (supra) upholding the view of the learned Single Judge, by observing that when an alternative and efficacious remedy is available this Court is not bound to entertain a petition under Article 226 of the Constitution.
It is well settled that where a statute provides for election to an office of an authority on an institution and it if further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute itself. While considering the election dispute, it must be kept in mind that the right to vote, contest or dispute an election is neither a fundamental or common law right instead it is a statutory right regulated by statutory provisions. In Gujarat University v. N.U. Rajguru, AIR 1988 SC 66, where the controversy was almost akin to the present one, it was held that it was not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by passing the machinery designated by the Act for determination of election dispute. It was further observed that ordinarily the remedy provided by the statute must be followed before the authority designated therein. In Ved Pal Singh''s case (supra), a Division Bench of this Court has held that a dispute between the members of the Degree College, with regard to election of office bearers of the Managing Committee cannot be resolved by sifting the facts by the High Court under Article 226 of the Constitution. The remedy of the aggrieved parties lies in preferring a suit.
There is a plethora of rulings of the apex Court on the point that an aggrieved party can approach the High Court under Article 226 ordinarily after exhaustion of the alternative remedy provided under a particular statute. There is a consensus of opinion that the writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum. The extraordinary jurisdiction of this Court cannot be permitted to be converted into that of a civil Court under the ordinary law. In my view, Section 68 provides a complete and effective apparatus to ventilate and redress the grievance of a person, who is aggrieved of an order passed by an authority of the University including the ViceChancellor. There is, therefore, no reason for by passing the effective provisions with in built safeguards under the Act, designed specially for the purpose. Since the petitioners have a forum in the form of Section 68 for the redressal of their grievance of the nature raised in the present petition, recourse to jurisdiction under Article 226 would not be appropriate. The allegations made in me writ petition basically deal with the inclusion or exclusion of particular persons from the membership of the Committee of Management. The various controversial facts raised in the petition cannot be sifted by this Court, particularly when the parties are at loggers head about the basic facts. It is no longer necessary to appraise the facts of the case or to express any opinion about the controversy raised by the petitioners, for one simple reason that it may, oneway or the other, prejudice the interest of either of the parties. I would, therefore, do better to refrain from making any observations with regard to the merits of the case.
A faint and feeble controversy, which virtually sidelined the issue, came to be raised whether the Chancellor, under clause (b) of the proviso to Section 68 of the Act is entitled to stay the operation of the impugned order. Sri Khare seems to suggest that since clause (b) ofthe proviso to Section 68 relates to a dispute about the election, it has to be read in conjunction with the parent provision of the Section which provides "If any question arises whether any person has been duly elected or appointed as, or is entitled to be member of any authority or other body of the University" and in the light of the provisions of Section 19 of the Act, which details the authorities of the University. This point need not detain us any longer as it is not germane to the controversy in hand. However, a short any swift reference may be made to the Division Bench decision of this Court in Chaudhary Ram Lakhan Chandra & Anr. v. Chancellor (Governor of UP Sampurnanand Sanskrit University) Varanasi & Ors., 1987 UPLBEC 720 in which it has been held that Section 68 of the Act confers power on the Chancellor to pass an order of stay if there is any dispute about the eligibility of the person elected.
In the result, I find that the petitioners should have first file a Reference under Section 68 of the Act and placed relevant material before the Chancellor who is expected to look into the controversy both on factual and legal matric and only after the matter is adjudicated upon by the Chancellor, a petition under Article 226 of the Constitution would be maintainable in view of the fact that the petitioner has failed to exhaust a comparatively more effective and efficacious remedy provided under Section 68 of the Act, which has been specifically designed for the purpose.
The writ petition is accordingly dismissed as not maintainable.