C/M Intermediate College Gaura vs State of U.P.

Ritu Raj Awasthi, J.—Heard learned Counsel for the Petitioner as well as learned Standing Counsel and Mr. D.C. Mukherjee assisted by Mr. Ajay Kumar Verma, who has put in appearance on behalf of opposite party No. 6 and perused the records.

Short counter affidavit filed on behalf of opposite party No. 6, is taken on record.

With the consent of parties'' counsel, the writ petition is being heard finally.

The writ petition has been filed challenging the order dated 6.8.2011 passed by Regional Joint Director of Education, Faizabad Region, Faizabad appointing authorized controller in the institution in question.

Learned Counsel for the Petitioner submits that the impugned order is patently wrong, illegal and without jurisdiction as u/s 6(1) of the Payment of Salaries Act, 1971, the proceedings for appointment of authorized controller can be initiated only on the recommendation of the District Inspector of Schools and in the present case no such recommendation was ever made by the District Inspector of Schools. He further submits that the committee of management of the institution has not committed any default and the authorized controller has been appointed merely on the basis of a complaint made by opposite party No. 6. The proceedings adopted by the opposite party No. 3 are wrong and hence the impugned order is not sustainable in the eyes of law.

Mr. Mukherjee, learned Counsel appearing for opposite party No. 6 has raised a preliminary objection regarding maintainability of the writ petition on the ground that against the impugned order, appeal u/s 7 of the Payment of Salaries Act, 1971 is provided before the Director of Education and as such the present writ petition is not maintainable.

It is also submitted that the plea raised by the Petitioner can very well be raised before the appellate authority. The Petitioner has approached this Court without exhausting the alternative remedy, hence the writ petition should be rejected at the admission stage itself.

The learned Counsel for the Petitioner in support of his submission has relied on a judgment of this Court rendered in the case of Committee of Management, K.S. Inter College, Mahamayanagar and Anr. v. State of U.P. and Ors. reported in 2010 (28) LCD 1431, wherein the order passed u/s 6(3) of the Payment of Salaries Act, 1971 for appointment of authorized controller was quashed by the Court. In the said judgment, the plea with respect to the alternative remedy was neither raised nor considered by the Court.

From the perusal of the relevant provisions, it is clear that the statutory appeal u/s 6 of the Payment of Salaries Act is available to the Petitioner before the Director of Education (Secondary), which he has admittedly not availed, as such I am of the considered opinion that the Petitioner shall first raise his grievance before the appellate authority and after exhausting the alternative remedy the writ petition may be filed. The grievance raised in the writ petition can be very well considered and decided by the appellate authority.

In this view of the matter, the writ petition is disposed of finally with the observation that in case the Petitioner prefers an appeal before the opposite party No. 2 within a period of 15 days from today, the same shall be considered and decided on merits in accordance with law, expeditiously, say within a period of six weeks.

With the aforesaid observations, the writ petition is disposed of finally.