Harender Singh vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1676 Del

JUDGMENT

J.M. Malik, J.

1. The petitioner joined Aviation Research Centre on 03.10.1994 as AFO (PL). The petitioner belongs to Scheduled Caste. A draft seniority list was circulated by the respondents dated 14.09.1998. The petitioner filed his objection to the seniority list. The status of the petitioner's case remained the same as it was in the year 1998 except the fact that he invited wrath of the officials on top and he was reverted back to a post lower to his cadre, also in a different department (MV). Since no attention was paid to the petitioner's case, therefore, he lodged an application with the Commission for Scheduled Castes and Scheduled Tribes narrating therein the in-built injustice towards Scheduled Castes candidates prevailing in the respondent organization. The Commission took cognizance and issued notice to the respondent department. The respondent did not file any comprehensive reply and the petitioner had to seek indulgence of the Hon'ble Commission since 21.03.2005. The respondent did not appreciate petitioner's seeking redress of his grievances from a body like the NCSC. He was initially transferred from Photo Lab to Motor Vehicle department despite the fact that neither he has done any course on Motor Vehicle nor has an ability to prove his excellencies in the field. From FO, he was reverted to DFO. He was reverted with retrospective effect. The petitioner moved an application dated 06.03.2006 under the Right to Information Act thereby seeking the relevant applicable rules, regulations and notifications governing his service condition. The application remained unattended to. It is pointed out that the following points should be taken into consideration.

1. Not providing a copy of the merit list.

2. Non-consideration of the objections raised to the draft Seniority list.

3. Subjecting the petitioner to forceful under performance by transferring him from Photo Lab to Motor Transport Section for no reason or justification.

4. Not allowing/granting scale of pay commensurate with seniority in position.

5. Non-payment of allowance in lieu of Compensatory off during the period of 1.1.2004 to 31.12.2004.

6. Not providing basic information like applicable roaster, merit list, applicable rules and regulations etc.

7. Non-disposal of application under Right to Information Act.

8. Non consideration of several representations made by the petitioner and/or mechanical response given to such representations.

2. The present writ petition was filed with the following prayers :

a) A direction in the nature of declaratory relief thereby declaring the seniority list circulated vide No.1/ARC/ Photo/98(19)-525 dated 14.9.98 as defective and pass appropriate orders to the respondents to undo the wrong;

b) Quash the Order No. 1/ARC/Photo/91(25)-7547 dated 08.11.2005 passed by the respondents for being unsubstantiated and bad in law; and restore the promotion Order No. 1/ARC/Photo/91(25)-499 dt. 21.01.2004;

c) Quash the order dt.8.2.2006 passed by the defendants whereby they confirmed their earlier order dt. 8.11.2005;

d) In the alternate direct the respondent No. 4 (ST/SC Commission) to dispose of the petitioner's complaint with appropriate recommendations within a time frame to be fixed by this Hon'ble Court;

e) Pass such other or further orders as may be deemed fit and proper by the this Hon'ble Court in the facts and circumstances of the present case.

3. At the very outset, learned Counsel for the respondent objected that since another efficacious remedy is available to the petitioner, therefore, the present writ petition is not maintainable. Arguments were heard on this point.

4. Learned Counsel for the petitioner vehemently argued that due to above mentioned extraordinary circumstances, the present writ petition is maintainable. In support of his case, he has cited two authorities reported in State of H.P. and Ors. v. Gujrat Ambuja Cement Ltd. (2005) 6 SCC 499, wherein it was held :

We shall first deal with the plea regarding alternative remedy as raised by the appellant State. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case of that there exist good grounds to invoke the extraordinary jurisdiction

It was further held :

There are two well-recognised exceptions to the doctrine of exhausation of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.

Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petition to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhausation of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.

The second authority is reported in Sanjana M. Wig (Ms) v. Hindustan Petroleum Corporation Ltd. , wherein it was held :

13. However, access to justice by way of public law remedy would not be denied when a lis involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief.

14. A Division Bench of this Court in ABL International Ltd. v. Export Credit Guarantee Corpn. Of India Ltd. Observed that in certain cases even a disputed question of fact can be gone into by the court entertaining a petition under Article 226 of the Constitution, holding : (SCC p. 572, para 28)

28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons for which the Court thinks it necessary to exercise the said jurisdiction.

5. On the other hand, learned Counsel for the respondent has cited an authority reported in L. Chandra Kumar v. Union of India and recent authority of Division Bench of this Court reported in Rati Ram and Ors. v. UOI and Ors. 128 (2006) DLT 729 (DB).

6. I am of the considered view that the petition filed by the petitioner does not disclose extraordinary circumstances. This is indisputable fact that Central Administrative Tribunal has the jurisdiction to try and decide the present dispute. The petitioner should first exhaust the alternative efficacious remedy. The writ petition is, therefore, dismissed.