Sailesh Awasthi vs The State Of Madhya Pradesh
2023 Latest Caselaw 296 MP

                                  1

     IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                 ON THE 5th OF JANUARY 2023

                WRIT PETITION No.173 of 2023

       Between:-

       SAILESH     AWASTHI,      S/O     SHRI    GURU
       PRASAD     AWASTHI,      AGED      53    YEARS,
       OCCUPATION: GOVERNMENT SERVANT,
       PERMANENT          R/O     217,         SUNCITY,
       CHATTARPUR, MP.-471001, CURRENT R/O
       C.M.O.    NIVAS,   NEAR     GANDHI        PARK,
       SHIVPURI (MADHYA PRADESH)


                                                .....PETITIONER

       (BY SHRI SANKALP SHARMA - ADVOCATE )

       AND
1.     STATE OF MADHYA PRADESH THROUGH
       THE PRINCIPAL SECRETARY,
       DEPARTMENT OF URBAN
       ADMINISTRATIION AND DEVELOPMENT,
       VALLABH BHAWAN, BHOPAL (MADHYA
       PRADESH)
2.     COMMISSIONER, URBAN
       ADMINISTRATION AND DEVELOPMENT,
                                       2

       PALIKA BHAWAN, SHIVAJI NAGAR,
       BHOPAL (MADHYA PRADESH) 462016

                                                      .....RESPONDENTS

       (BY SHRI JITESH SHARMA - GOVT. ADVOCATE, SHRI J.D.

       SURYAVANSHI, SENIOR ADVOCATE WITH SHRI KUNAL

       SURYAVANSHI FOR CAVEATOR)

--------------------------------------------------------------------------------
       This petition coming on for admission this day, Hon'ble
Shri Justice Milind Ramesh Phadke passed the following:

                               ORDER

1. This writ petition under Article 226 of the Constitution of India had been filed against order dated 16/12/2022 passed by Respondent No.2, whereby the Petitioner was suspended invoking section 86 of M.P. Municipalities Act, 1961, M.P. Civil Services (Classification, Control, Appeal) Rules 1966 and rule 36 of M.P. Municipalities Service (Executive) Rules, 1973.

2. Brief facts of the case are that the Petitioner was working as Chief Municipal Officer, Municipal Council, Shivpuri. On 16/12/2022, during a public visit of the Chief Minister at Shivpuri, for gaining popularity in the public and without any reason announcement was made from the stage of suspending the Petitioner, which became the front news of the local newspapers. The impugned order is politically motivated and against the very guidelines issued by the General

Administration Department, where the Civil Servant should not be put under suspension for minor irregularities and the authorities should consider all the facts before suspending a Civil servant.

3. Learned Government Advocate appearing on advance notice raised a preliminary objection on the maintainability of the present Petition on the ground of availability of alternative remedy of statutory Appeal against the impugned order of suspension as per Rule 23 of M.P. Civil Services (Classification, Control, Appeal) Rules 1966 read with Rule 39 of M.P. Municipalities Services (Executive) Rules 1973 and therefore, the Petition doesn't deserve to be entertained.

4. Learned counsel appearing on behalf of the Petitioner when put to answer the above preliminary objection vehemently argued that an arbitrary order hits the fundamental right of an employee as envisaged under Article 14 of the Constitution of India and in such cases it is not necessary to refer the employee to avail alternative remedy. It was further argued that alternative remedy under Article 226 of the Constitution of India is not an absolute bar, it is a rule of policy convenience and discretion rather than a rule of law and is qualified by some good grounds, if available. To bolster his submissions he placed reliance in the matter of Nahid Jahan Vs. State of M.P. reported in ILR (2017) MP 2947, wherein the Single Judge of this Court while

dealing a similar issue of suspension and held that when an arbitrary order of suspension affects the fundamental rights of an employee, alternative remedy of appeal is not a bar and a Writ would be maintainable. Further reliance was placed in the matter of State of M.P. Vs. P.N. Raikwar reported in ILR (2018) MP 2696 for the proposition that the appeal against the order of suspension at the behest of the Chief Minister would not be an efficacious remedy and it would just be a futile exercise.

5. Heard the Counsel for the Petitioner at length on the point of maintainability of the present Petition.

6. Number of submissions have been made by the counsel appearing for the Petitioner on merits. However, for the reasons given hereinbelow, this Court is of the opinion that in wake of availability of statutory Appeal to the Petitioner against the suspension order, the Petitioner ought to be relegated to prefer an appeal provided under the rules before the appellate authority, rather than entertaining this petition and therefore, this Court is not elaborating the submissions on merits

7. First anomaly starts from the memo of Petition. In Column 3 of the Writ Petition, which is a column for mentioning about the legal remedies exhausted by him before preferring this Petition, it is declared that he has exhausted all the remedies available to him and has left with no other option

then filing this present Petition, whereas there is an alternate remedy of appeal available to the Petitioner as provided under the rules and this fact is also admitted by the Counsel appearing for the Petitioner.

8. Second aspect which is harped by the Counsel for the Petitioner is on the efficaciousness of the said appeal. It is argued that since on a declaration of the Chief Minister for suspending the Petitioner from a public platform, the impugned order for suspension had been passed by the authorities, and they had acted in such a pace that on the same day the entire record was scrutinized by the Collector and the Joint Director, Urban Administration and Development and was send to the Commissioner, Urban Administration and Development, who on the very same day suspended the Petitioner and therefore, since the appellate authority is the State itself (Governor in this case), going in for appeal would be an empty formality, thus, no fruitful purpose would serve in preferring the appeal and it would not be an efficacious remedy, has no force.

9. Firstly, from bare perusal of the impugned order, there is no reflection of the fact that it was passed on a declaration for suspending the Petitioner, by the Chief Minister from a public platform in a meeting of the same date, rather from the order it reflects that due to dereliction of the Petitioner from his duties the Municipal Council, Shivpuri, had not achieved the targets in

number of scheme like Pradhanmantri Avas Yojna, Swanidhi Yojna, C.M. Helpline, including schemes for recovery of revenue and Cleanliness survey, which had led the Municipal Council, Shivpuri on the last footboard and only on the recommendations of the Collector and Joint Director, Urban Administration and Development, the impugned order of suspension was passed. Against the order of suspension admittedly there is a statutory remedy of appeal available to the Petition and in absence of the any allegations as levelled by the Petitioner, this Court holds that it is an efficacious remedy.

10. Thus, since the impugned order is only with respect to suspension of the petitioner against which the remedy of appeal is available to him, this Court is not inclined to entertain the present writ petition.

11. The petition is accordingly dismissed for want of alternative remedy.

12. So far as the Judgment cited by the Petitioner in the matter of Nahid Jahan (supra) is concerned, it was a case where the Principal of School was suspended for trivial mistake of inclusion of a dead person in the provisional list of Primary and Middle School Teachers issued for the purpose of rationalization purpose of surplus teachers, due to which at the time of calling of objections the Government had to face unpleasant situation. The Learned Single Judge in such

circumstance had held that the order was passed in a routine manner and such exercise of power cannot be countenanced and in such circumstance the employee is not required to relegate to avail the alternative remedy. Such is not the case in hand. The major flaws in the working had been pointed out in the order, which at the later point of time the Petitioner had to answer.

13. The other Judgment cited of State of M.P Vs. P.N. Raikwar (supra) is concerned, it is not applicable to the fact situation, as the question referred to be answered therein was that:

"Whether authentication of an order of punishment in the name of the Governor is an order of the State Government against which an appeal would lie to the Governor or there is no statutory remedy against such an order."

14. Thus, the Petition being devoid of merits is hereby dismissed.

(Milind Ramesh Phadke) Judge Pawar/-

ASHISH PAWAR 2023.01.11 14:39:35 +05'30'