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Chand Khan v. Dy. Director Of Education & Others - WRIT - A No. 11273 of 1991 [2007] RD-AH 8000 (30 April 2007)


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Hon'ble Rakesh Tiwari, J

Heard counsels for the parties and perused the record.

Case of the petitioners is that five permanent posts of class III employees fell vacant in Bundelkhand Degree College, Jhansi. In pursuance of an advertisement dated 14.11.1989, the petitioners applied for the said posts. They were interviewed on 30.11.1989 and a panel of seven persons was recommended by the Interview Board.

In pursuance of the recommendations, five persons were approved for appointment by the Committee of Management and were issued letters of appointment dated 2.12.1989. However, their appointment was not approved by the Director of Education as such  the posts held by the petitioners were readvertised and fresh selections were made. The Director of Education has approved the fresh selections vide impugned order dated 21.8.1991.

Aggrieved, the petitioners have invoked the writ jurisdiction by means of the instant writ petition.  

It is averred in the counter affidavit that the petitioners have come before this Court by concealment of material facts and not with clean hands.  By the counter affidavit, the respondents have brought to the notice of this Court that the petitionrs were only daily wage employees and not permanent employees.  They have not been absorbed against permanent posts and in fact, the Deputy Director of Eduction- respondent no. 1 by his order dated 7.3.1990 had refused approval of the appointment of the petitioners.  In fact the appointment of the petitioners was on daily wage basis for fixed term.  Letters of appointment of the petitioners have been appended with the counter affidavit as Annexures C.A. 2 to C.A 4 respectively.

It is also averred that since the appointment of the petitioners was not approved by the Deputy Director of Eduction, the College had no option left except to readvertise the vacancies for making fresh recruitments and there is no illegality in the circumstances.

The petitioners are class III employees and are workmen within the meaning of Section 2(z) of the U.P. Industrial Disputes Act, 1947.  The question as to whether their appointment was legal and valid or they have concealsed the material fact from the Court that their appointment was not approved by the Deputy Director of Eduction requires findings of fact. It is not feasible for the High Court to take oral and documentary evidence under Article 226 of the Constitution and adjudicate by stepping into the shoes of  Labour Court which forum is created with a specific object to deal with such matters requiring findings of facts.  The question as to whether the petitioners are entitled to the benefits, as claimed by them is mixed question of facts and law which can be decided only after consideration of oral and documentary evidence which may be led by the parties before the Labour Court.  

It is the consistent view of Hon'ble the Supreme Court in Hindustan Steel Works Construction Ltd., and another Vs. Hindustan Steel Works Construction Ltd., Employees Union-(2005)6 SCC-725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another (2005)107 FLR-729 that in case alternate and efficacious remedy is available it should not be bye-passed and writ petition should not be normally entertained by the High        Court under Article 226 of the Constitution of India and the petitioner has to approach this Court after availing alternate remedy.

The petitioners have an alternate and efficacious remedy before the Labour Court/Industrial Tribunal, as held in Chandrama Singh V. Managing Director U.P.Co-operative Union Lucknow and others- (1991)1UPLBEC(2)-898.  

For the reasons stated above, I am not inclined to interfere in the matter in exercise of powers under Article 226 of the Constitution as it requires findings of facts to be recorded on the basis of of oral and documentary evidence.

Accordingly, the writ petition is dismissed on the ground of availability of alternative remedy.   No order as to costs.

Dated 30.4.2007



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