Madhya Pradesh High Court
Sher Ali Patel vs The State Of Madhya Pradesh on 12 July, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12 th OF JULY, 2023
WRIT APPEAL No. 934 of 2023
BETWEEN:-
SHER ALI PATEL S/O SHREE HAZI REHMAT ALI PATEL,
AGED 48 YEARS, OCCUPATION: PANCHAYAT
SECRETARY GRAM BYAORA, TEHSIL AND DISTRICT
UJJAIN (MADHYA PRADESH)
.....APPELLANT
(SHRI GOURAV SHRIVASTAVA, LEARNED COUNSEL FOR THE
APPELLANT)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY PANCHAYAT AND RURAL
DEVELOPMENT DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. COLLECTOR UJJAIN, DIST. UJJAIN (MADHYA
PRADESH)
3. SUB DIVISIONAL OFFICER (REVENUE) UJJAIN
DIST. UJJAIN (MADHYA PRADESH)
4. TEH S I LD AR TEHSIL UJJAIN, DIST. UJJAIN
(MADHYA PRADESH)
5. CHIEF EXECUTIVE OFFICER DISTRICT
PANCHAYAT UJJAIN, DIST. UJJAIN (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI BHUWAN GAUTAM, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENTS/STATE)
T h is appeal coming on for order this day, JUSTICE SUSHRUT
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 7/13/2023
10:15:33 AM
2
ARVIND DHARMADHIKARI passed the following:
ORDER
Heard finally with the consent of both the parties.
I n this writ appeal under Section 2(1) of the Madhya Pradesh Uccha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 appellant assails the
order dated 03.07.2023 passed in W.P. No. 14199/2023 whereby the writ
petition filed by the appellant has been disposed of by the learned Single Judge
with liberty to avail the remedy of appeal.
2. Brief facts of the case are that appellant who was appointed on the
post of Panchayat Secretary in the year 1995 till 24.11.2021 was put under
suspension by respondent no.5 vide order dated 14.06.2023 on the ground of
certain irregularities found during construction of pond in the village Ninora
under the MANREGA Scheme. Being aggrieved by the said order of
suspension, appellant had filed a writ petition which was disposed of by the
learned Single Judge with liberty to avail the remedy of appeal. Now, the present
intra Court appeal has been filed.
3. Learned counsel for the appellant submitted that learned Single Judge
has erred in dismissing the writ petition on the ground of availability of
alternative remedy. In support of his submission he has placed reliance on the
judgment passed by the Apex Court in the case of Whirlpool Corporation Vs.
Registrar Trade marks reported in 1998 SC 1 wherein it was held that High
Court having regard to the facts of the case, has discretion to entertain or not to
entertain a writ petition. It is further submitted that the learned Single Judge has
erred in not considering the fact that Rule 7 of M.P. Panchayat Service (Gram
Panchayat Secretary Recruitment and Conditions of Service) Rules, 2011
provides for giving of show cause notice and affording of opportunity of
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 7/13/2023
10:15:33 AM
hearing to the petitioner which has not been complied with by the respondents.
It is also submitted that appellant has not acted with any wrongful or malice
intent or with an object of misappropriation of the public money at any point of
time. Hence, the impugned order passed by the learned Single Judge deserves
to be quashed.
4. Per contra, learned counsel for the respondent/State has opposed the
prayer and supported the order impugned with the submission that appellant
without availing the alternative remedy has again approached this Court.
Therefore, no indulgence is warranted and the present writ appeal deserves to
be dismissed.
5. We have heard learned counsel for the parties and perused the
record.
6. Upon perusal of the order passed by the writ Court, we do not find
any error apparent warranting interference in the order impugned as the learned
writ Court has rightly held that there is no bar for the Court to exercise writ
jurisdiction in view of availability of alternative remedy. Moreso, writ Court
relying on the judgment passed in the case of S.A. Khan Vs. State of
Haryana (1993) 2 SCC 327 has rightly held that Apex Court has declined to
invoke writ jurisdiction against an order of suspension on the ground of
availability of alternative remedy of appeal and relegated the appellant to avail
the remedy of filing an appeal in accordance with law. However, appellant
without availing the remedy of filing an appeal against the order of suspension
has rushed to this Court by filing the present intra Court appeal.
7. In view of the above, this Court is not inclined to entertain the present
intra Court appeal. Appeal being devoid of merit is hereby dismissed,
However, it is made clear that if the appellant files an appeal within a period of
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 7/13/2023
10:15:33 AM
fifteen days from today, the appellate authority without insisting on the issue of
limitation, shall consider and decide such appeal on its own merits as
expeditiously as possible, preferably within a further period of sixty days.
(S. A. DHARMADHIKARI) (HIRDESH)
JUDGE JUDGE
sh
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 7/13/2023
10:15:33 AM
