1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER SB Civil Writ Petition No. 8269/2010 Shri Radhakrishna Educational Institute Vs National Council For Teacher Educatioin & others 23.11.2010 HON'BLE MR. JUSTICE MN BHANDARI Mr RD Rastogi - for the petitioner Mr Shantanu Sharma – for respondents No.1 and 2 Mr AK Sharma – for respondents BY THE COURT: The matter has come up on an application for vacation of interim order. However, with the consent of learned counsel for parties, the writ petition has been heard finally. It is a case where petitioner-institution was given recognition for B.Ed. course till session 2009-10. The recognition was, thereafter, withdrawn for the session 2010-11. Petitioner filed an appeal under section 18 of the National Council for Teacher Education Act, 1993 (for short 'the Act of 1993'). While the aforesaid appeal was pending, counselling for admission of students to B.Ed. course was commenced thus petitioner preferred present writ petition to seek interim relief which was then granted by this court vide order dated 18.6.2010. In compliance of the 2 interim order, petitioner institute was included for counselling and, accordingly allotted students for pursuing B.Ed. course. Similar interim orders were passed in several other writ petitions after hearing counsel for respondents. The issue and controversy in those matters is similar to this case. Learned counsel for respondent-NCTE submits that pending appeal before the appellate authority under section 18 of the Act of 1993 this writ petition is not maintainable and, at the very out set, it deserves to be dismissed on the ground of availability of alternative remedy which has already been exhausted. It is submitted that parallel two remedies cannot be availed apart from the fact that that only to seek interim order, writ jurisdiction is not available more so when petitioner never made an effort to seek interim order from the appellate authority and rejection thereof. Both the counsel referred several judgments in support of their contentions. However, it has not been disputed by learned counsel for parties that the appeal is still pending consideration before the appellate authority under section 18 of the Act of 1993. The main thrust of the argument of learned counsel 3 for petitioner is that in absence of provisions for grant of interim relief, petitioner could not have made an application before the appellate authority. Referring to the proforma provided for filing appeal, it has been focused that there is no head to pray for interim relief which otherwise exist in other enactments wherein also proformas are provided for filing appeal. A specific reference of the provision of the Central Administrative Tribunal (Procedure) Rules of 1987 and Armed Forces Tribunal(Procedure) Rules, 2008 has been given. Learned counsel for petitioner, therefore, justified filing of the writ petition pending appeal against refusal of recognition for B.Ed. course for the academic session 2010-11. On the other hand, side opposite cited judgments to support their arguments. Reference of the judgment in the case of Secretary, Minor Irrigation & Rural Engineering Services, UP & ors Versus Sahngoo Ram Arya & anr (2002) 2 SCC 521 has been given by referring paras 11 and 12. Therein, it is held that even if a Tribunal has no authority to grant interim relief, it cannot be a ground for maintaining a writ petition. Paras 11 and 12 of the said judgment are quoted thus - “11.These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil 4 Misc. W.P. No.47130 of 2000 etc. on 1.2.2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an alternate remedy by way of petitions before the U.P. Public Service Tribunal (the tribunal), and had permitted the writ petitioner therein to approach the tribunal and directed the tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There was a further direction to the tribunal to decide the matter expeditiously. 12. Mr. Sunil Gupta, learned counsel appearing for the petitioner, contended that the remedy before the tribunal under the U.P. Public Service Tribunal Act is wholly illusory inasmuch as the tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a tribunal for adjudicating the disputes of a Government servant, the fact that the tribunal has no authority to grant an interim order is no ground to by- pass the said tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to by-pass the said tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the tribunal. In the said view of the matter, the appeals are dismissed. No costs.” Perusal of the aforesaid shows that only jurisdiction by the petitioner herein to maintain this writ petition was answered in negative by the Apex Court in similar facts. The only justification given by learned counsel for 5 petitioner is that there is no provision for grant of interim relief by the appellate authority and, for that purpose, even proforma has been placed before me. It goes without saying that, at times, no specific provision exists for grant of interim relief but such powers are found to be inherent in nature and if petitioner would have made an application for grant of interim relief and the same would have been denied, at least some justification could have been there for maintaining the writ petition. Para 12 of the judgment quoted above provides assistance on the aforesaid issue. This is apart from the fact that two parallel remedies by one and the same petitioner cannot be allowed to be maintained. Herein, an appeal is pending consideration before the appellate authority and, during pendency of that appeal, writ petition has been filed. In fact, writ jurisdiction of this court cannot be invoked for grant of interim relief only and, that too, when no such prayer was made to the appellate authority in the pending appeal. In the light of aforesaid also, two parallel remedies by one and same petitioner cannot be allowed to maintained. Therefore, this court has no option but to dismiss this writ petition on the preliminary issue itself. Reference of the judgment reported in 1995(1) SCC 642 (BMRDA versus Gokak Patel Volkart), 2002 (4) WLR 784 and 2004 (3) WLC (Raj) 425 has also been given to show that parallel litigation cannot be allowed. The emphasis of learned 6 counsel for respondents is that pending appeal, this writ petition is not maintainable. This is more so when merit of the case would be decided by the appellate authority as has been admitted by the learned counsel for petitioner also. The fact, however, remains that by way of interim order petitioner institute was allowed to participate in the counselling and students have been allotted to it. Under these facts, even if the writ petition is dismissed on the ground discussed above, petitioner is entitled for protection for intervening period by which appeal can be decided. Accordingly, while dismissing this writ petition holding it to be not maintainable for the reasons assigned aforesaid, the respondent-NCTE is directed to hear and decide the appeal preferred by the petitioner within reasonable time which should not exceed beyond one month from the date of receipt of copy of this order. Petitioner may be informed about next date of hearing within aforesaid period. Till such time, students allotted to petitioner institute for B.Ed. course may not be discontinued. It is further made clear that if, ultimately, appeal of the petitioner is dismissed it would be at liberty to take legal recourse. In that eventuality, so far as students pursuing their studies in the petitioner institute are concerned, the University will see to it that 7 they are allotted to another institute so that their career is not put to stake on account of inter se dispute between the petitioner institute and the NCTE, this is more so when other institutes have unfilled seats. (MN BHANDARI), J. bnsharma