Gujarat High CourtPinakin N Trivedi vs Heenaben Kartikey Raval-Principal on 5 May, 2015Author:Jayant PatelBench:Jayant Patel,G.B.ShahC/LPA/869/2015                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD



               LETTERS PATENT APPEAL NO. 869 of 2015

                                     In
            SPECIAL CIVIL APPLICATION NO. 11324 of 2013

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               PINAKIN N TRIVEDI....Appellant(s)
                           Versus
HEENABEN KARTIKEY RAVAL-PRINCIPAL, AHMEDABAD HOMEOPATHIC
            MEDICAL COLLEGE & 3....Respondent(s)
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Appearance:
MR NISARG M DESAI, ADVOCATE for the Appellant(s) No. 1
MR PRADEEP PATEL, CAVEATOR for the Respondent(s) No. 1



          CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
                 and
                 HONOURABLE MR.JUSTICE G.B.SHAH



                             Date : 05/05/2015


                              ORAL ORDER(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)1.    We have heard Mr. Desai, learned counsel appearing for
the   appellant       and   Mr.   Pradeep       Patel,   learned    counsel
appearing for the main contesting party-original petitioner on
caveat.2.    It prima facie appears that there is no question of hearing
to be given in a matter where any person is appointed as
nominee or is nominated           by the Higher Authority. No rightsPage 1 of 4C/LPA/869/2015                              ORDERcan be said to have been created against the authority who is
nominated by the nominee. Under the circumstances, the
ground on which the preliminary contention of maintainability
of the petition is negatived, is prima facie not correct.3.   It prima facie appears that in a matter of interpretation of
the Act or any Statute or Ordinance or Regulation or Rule,
express remedy has been provided undersection 77of the
Hemchandracharya North Gujarat University Act, 1986.4.   In any case nomination was made undersection 26(2)(ii)by the Vice Chancellor and the dispute arose pertaining
thereto and when there was express statutory remedy
available coupled with the aspects that prima facie the
principle of natural justice will have no role to play in a matter
of nomination, the entertainment of the petition underArticle
226of the Constitution by way of self imposed restriction could
not have been made.5.   It prima facie appears that the exercise of power for
change of nomination by the Vice Chancellor as per the
affidavit of the University was on the ground that the college
was not in the University area Such ground, per se, cannot be
said as with malafide exercise of the power.6.   In our prima facie view, when the nominee has no right
against the nominator as sought to be canvased, the relief
could not be considered and the matter, at the most, could be
relegated to the express remedy ofsection 77as provided by
the aforesaid act.7.   Mr. Nayak, learned counsel appearing for the respondent-Page 2 of 4C/LPA/869/2015                                      ORDERoriginal petitioner attempted to contend that once the petition
was admitted inspite of the resistance of alternative remedy by
the appellant herein, the original petitioner could not have
been    relegated           to   the   alternative   remedy.    He     further
submitted that as per the decision of the Apex Court in the
case ofDr. Balkrishnan vs. State of UP & Ors., reported in
1995 (1) SCC 614, the remedy could not be termed as
alternative remedy and, hence, the impugned order has been
rightly passed for rejection of the preliminary contention.8.     The decision upon which the reliance has been placed is
in a matter of appointment of a teacher after process of
selection where the right is created in favour of the appointee
as per the service jurisprudence. Such are not the fact
situation in the present case. Further, in the present case, it
was a matter of raising the dispute by the nominee against the
nominator and as observed by us, prima facie, no right could
be said to have been created against the nominator by the
nominee. Hence,the said decisionis of no help to the learned
counsel.9.     In view of the aforesaid, following order:10.    Admit.11     Fix for final hearing on 22nd July, 2015. By interim order,
the operation and implementation of the order passed by the
learned Single Judge shall remain stayed and suspended.12.    At this stage, Mr. Nayak, learned counsel appearing for
the respondent-original petitioner, prays that the operation
and implementation of the order be stayed for sometime so as
to enable his client to approach before the Higher Forum.Page 3 of 4C/LPA/869/2015                        ORDER13.     Considering the facts and circumstances and the status
of the original petitioner was as that of the nominee, we are
not inclined to grant such request. Hence, the same is
declined.(JAYANT PATEL, J.)




                                                 (G.B.SHAH, J.)




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