Allahabad High Court
C/M Islamiya J.H.S. Thru. Manager ... vs State Of U.P. And 4 Others on 6 November, 2015
Bench: Arun Tandon, Vipin Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. 10
Case :- SPECIAL APPEAL DEFECTIVE No. - 746 of 2015
Appellant :- C/M Islamiya J.H.S. Thru. Manager And Anr.
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Vijay Kumar Singh,Lakshmi Kant Trigunait
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
Hon'ble Arun Tandon,J.
Hon'ble Vipin Sinha,J.
Heard learned counsel for the parties.
Counsel for the parties agree that the present appeal may be disposed at this stage without calling any further affidavits specifically in view of the order proposed to be passed today by the Court.
The order of Hon'ble Single Judge dated 27.8.2015 passed in Writ Petition No. 40331 of 2015(Committee of Management & another Vs. State of U.P. and others) is under challenge in this intra court appeal.
According to the appellants, the order dated 10.7.2015 appointing the Authorized Controller in the institution was challenged before the Writ Court amongst others on the ground that no notice/opportunity of hearing was afforded to the appellants nor any notice was served. The Committee of Management has been superseded in exercise of power under Section 6(3) of the Uttar Pradesh Junior High Schools (payment of Salaries of Teachers and other Employees) Act, 1978. Reference is also made to the Deivision Bench of this Court in the case of Committee of Management Sahid Sansmaran Inter College, Sherpur & another Vs. Deputy Director of Education, Varanasi & another reported in 1993 A.L.J. page 318, wherein it has been held that if an order has been passed without affording any opportunity of hearing, the availability of alternative remedy will not come in the way of the petitioners to approach the High Court.
It is submitted that without calling for any affidavit and without there being any denial to the pleas raised on behalf of the petitioners, the Writ Court proceeded to dismissed the petition on the ground of remedy available under Section 7 of the said Act.
Faced with the said contention, Standing Counsel as well as counsel for the respondent-person seeking impleadment contended before us that it would be in the nature of justice and the Competent Authority may be asked to pass a fresh order after affording opportunity of hearing to the parties and after examining the records.
We are of the considered opinion that the plea of availability of alternative remedy is not an absolute bar in entertainment of a petition under Article 226 of the Constitution of India. We may not enter into the necessity of the arguments raised by the parties before us at this stage. Inasmuch as interest of substantial justice would be served by issuing following directions:
(a) The petitioner-appellant may treat the order dated 10.7.2015 to be a show cause notice and submit his reply to the same within three weeks from today along with certified copy of this order.
(b) The Joint Director of the Education, 12th Region shall fix a date for hearing and for examination of the record of the institution.
(c) The Joint Director of the Education shall pass final order after affording opportunity of hearing supported by reasons.
(d) The said exercise shall be completed within four weeks of the receipt of the reply.
All consequential actions shall be taken accordingly.
The order of the Deputy Director dated 10.7.2015 shall abide by the orders to be passed as aforesaid.
This appeal stands disposed of.
Order Date :- 6.11.2015
Ashish Pd.
Case :- SPECIAL APPEAL DEFECTIVE No. - 746 of 2015
Appellant :- C/M Islamiya J.H.S. Thru. Manager And Anr.
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Vijay Kumar Singh,Lakshmi Kant Trigunait
Counsel for Respondent :- C.S.C.,Shyam Krishna Gupta
Hon'ble Arun Tandon,J.
Hon'ble Vipin Sinha,J.
(Civil Misc. Delay Condonation Application No. 366110 of 2015)
Heard Sri Vijay Kumar Singh, learned counsel for the appellants, Sri Prabhakar Awasthi, Advocate appearing on behalf of the person, who has prayed for impleadment before the Writ Court but his application was rejected.
The delay of one day in filing of the appeal has been explained to the satisfaction of the Court.
Delay is condoned. Appeal is held to be within time. This application stands allowed. Office to allot regular number to the appeal.
Order Date :- 6.11.2015
Ashish Pd.
