Jitendra Kumar vs State Of Uttarakhand & Others
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      HIGH COURT OF UTTARAKHAND AT NAINITAL

                   Writ Petition (S/S) No. 305 of 2021


Jitendra Kumar                                            ...Petitioner

                                   Versus

State of Uttarakhand & others                        ....Respondents

Present:-

Mr. Vipul Sharma, Advocate for the petitioner. Mr. Anil K. Bisht, Additional C.S.C. with Mr. Sushil Vashistha, Standing Counsel for the State.

Judgment

Hon'ble Ravindra Maithani, J. (oral)

Petitioner seeks the following relief:-

"(a) Issue a writ, order or directions in the nature of mandamus directing the respondents to consider the candidature of the petitioner for participating in the departmental exercise for promotion on the post of Sub-Inspector (Civil Police/Intelligence) pursuant to the advertisement dated 22.01.2021 issued by the Police Headquarters, Uttarakhand."

2. Heard learned counsel for the parties and perused the record.

3. Petitioner is a Head Constable in Civil Police. He intends to participate in the departmental promotional examination to be held on 21.02.2021.

4. It is the case of the petitioner that on 05.08.2015, he was awarded a punishment of censure entry. In the year 2015, when the petitioner appeared in the departmental promotional examination, four points were deducted from his service record for the two adverse entries, which the petitioner had acquired between the years 2008 and 2014. For the present examination, it is submitted that the candidature

of the petitioner has been rejected because of the adverse entry which was awarded to him on 05.08.2015.

5. At the very outset, the Court wanted to know from learned counsel for the petitioner as to why this matter may not be entertained by the State Public Services Tribunal, (for short "the Tribunal") which is constituted under the U.P. Public Services (Tribunal) Act, 1976 (for short "the Act").

6. Learned counsel for the petitioner would submit that for an adverse entry on 05.08.2015 and for another adverse entry, marks had already been deducted in the last departmental examination, in which the petitioner appeared. Due to the same adverse entry, now the petitioner cannot be debarred to appear in the examination, in view of Article 20 of the Constitution of India, which according to the learned counsel for the petitioner, speaks of right to freedom. It is argued that it is the violation of Fundamental Rights of the petitioner, therefore, the alternate efficacious remedy is no bar for this Court to entertain the instant petition.

7. On the other hand, learned State Counsel would submit that the candidature of the petitioner has been rejected by the Uttarakhand Subordinate Service Commission and that order has not been challenged. It is also argued that this matter is entertainable by Public Services Tribunal and the direct writ petition in the High Court may not be entertained.

8. During the course of argument, learned counsel for the petitioner also made a reference to the judgment in the case of Bhuwan Chandra Pandey & others v. State of Uttaranchal & others; 2006 (2) U.D. 439, to argue that, in that judgment the scope of Section 5 (5-A) and Section 5 (5-C) has not been examined by the Court. Hence, the said judgment is per-incuriam. Learned counsel for the petitioner

argued that Section 5 (5-A) of the Act bars grant of interim relief & in view of Section 5 (5-C) of the Act, an order of censure entry cannot be challenged, before the Tribunal. The remedy in the Tribunal cannot be said to be efficacious, therefore, the instant petition is maintainable.

9. There is no rule of law that if alternate efficacious remedy is available, the High Court under Article 226 of the Constitution of India cannot entertain the petition. There is no such rule.

10. In the case of State of U.P. v. Mohd. Nooh; AIR 1958 SC 86, the Hon'ble Supreme Court discussed the principle which covers the field. In para 10 of it, the Court observed as hereunder:

"10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."

11. In the case of State of U.P. & another vs. Labh Chand; (1993) 2 SCC 495, the Hon'ble Supreme Court dealt with the jurisdiction of the Public Services Tribunal as well as the jurisdiction to entertain a writ petition under Article 226 of the Constitution of India and in para 9 of the said judgment, the Hon'ble Supreme Court observed as hereunder:

"9. When a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit

such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well-settled. A Constitution Bench of this Court in Thansigh Nathmal and Ors. v. A. Mazid, Superintendent of Taxes, [1964] 6 SCR, 655, when had the occasion to deal with the question as to how the discretionary jurisdiction of a High Court under Article 226 of the Constitution, was required to be exercised respecting a petition filed there-under by a person coming before it bypassing a statutory alternate remedy available to him for obtaining redressal of his grievance ventilated in the petition, has given expression to the said well-settled legal position, speaking through Shah, J., as he then was, thus":

"...The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations......Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the Statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." (Pages 661-

62)"

(emphasis supplied)

12. In para 10 of the judgment in the case of Labh Chand (supra), the Hon'ble Supreme Court posed a question as hereunder:-

"10........as the alternate remedy which according to the Division Bench was not availed of by the respondent here before the filing of his earlier Writ Petition, being that available before the Forum of the U.P. Public Services Tribunal, it becomes necessary for us to see whether that Forum did provide to the respondent here a remedy which was both adequate and efficacious. We shall now look into the relevant provisions of the U.P. Public Services (Tribunals) Act, 1976 (for short 'the Act') creating the U.P. Public Services Tribunal and the rules made thereunder as they would the needed light on the exact nature of the Tribunal, and the adequacy and efficaciousness of the remedy available with it."

13. And the answer has been given in para 16 of it. The Hon'ble Supreme Court observed as hereunder:-

"16.....If we have regard to the high status of the members constituting the Tribunal, expertise possessed by such

members to consider the claims of employees in matters of their employment, vast powers invested in them to hold exhaustive enquiries and to grant full reliefs in matters relating to their employment, we cannot but hold that that Tribunal is the highest forum created by the Act to give full and complete relief to public servants in matters of their employment, that too, with expedition......."

14. There is no doubt that the dispute is with regard to service matters which begins from appointment till superannuation as held in the case of State of Madhya Pradesh & others v. Shardul Singh; 1970 (1) SCC 108.

15. Learned counsel for the petitioner has made reference to the Fundamental Rights. In fact in the year 1998, in the case of Whirpool Corporation v. Registrar of Trade Marks, Mumbai & others; (1998) 8 SCC 1, the Hon'ble Supreme Court in this regard observed as hereunder:

"15. Under Article 226 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. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

16. After discussing the law on the subject, in the case of Whirlpool Corporation (supra), the Hon'ble Supreme Court also observed the availability of the jurisdiction under Article 226 of the Constitution of the India in para 20 as hereunder:

"20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a

case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."

17. In the case of Whirlpool (supra) the observation has been made in the context of examining the maintainability of a writ petition under Article 226 of the Constitution of India against a show cause notice, which was issued wholly without jurisdiction.

18. The judgement in the case of Whirlpool Corporation (Supra) was further referred in the judgement of Harbanslal Sahnia & another v. Indian Oil Corporation Ltd. & others; (2003) 2 SCC 107 and in para 7 of it, the Hon'ble Supreme Court observed as hereunder:

"7......the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an .Act is challenged....."

19. It may be noted that Harbanslal Sahnia's case was with regard to termination of dealership and availability of arbitration clause. The same judgment has further been noted by the Hon'ble Supreme Court in the case of State of Rajasthan & others v. Lord Northbrook & others; 2019 SCC Online SC 1117. Although due to conflicting opinions, the matter has been referred to the Larger Bench.

20. In the case of Bhuwan Chandra Pandey (supra), the Division Bench of this Court has discussed the law on the point and also considered availability/non-availability of interim order before the Tribunal. In that case, reference has been made to Section 5B and Section 5 C of the Act and in para 18, the Court observed "the fact that the Tribunal has no authority to grant an interim order is no ground to bypass the said Tribunal."

21. In the case of Bhuwan Chandra Pandey (supra), the Hon'ble Supreme Court in para 9 summed up the opinion as hereunder:

"9. It is well settled principle of law that the High Court cannot lose sight of the fact that the matters of alternative remedy has nothing to do with the jurisdiction of the cases, normally the High Court should not interfere if there is an adequate efficacious alternative remedy available. If anybody approaches the High Court without availing the alternate remedy the High Court would ensure that he had made out a strong case or that there exist good ground to invoke the extraordinary jurisdiction. The rule of alternative remedy is essentially a rule of policy, convenience and discretion. When the petitioner files the petition before the High Court he should also state the reasons as to why he thought that the alternative remedy would not be efficacious. The High Court should not bypass the said Tribunal where the government servant is aggrieved by an order of the government pertaining to the service matter within the jurisdiction of the Tribunal."

22. As stated it is argued that the judgment in the case of Bhuwan Chandra Pandey (supra) is per-incuriam because it has not considered the scope of Section 5 (5-A) and 5 (5-C) of the Act. Section 5 (5-A) of the Act is as hereunder:-

"(5-A) No interim order (whether by way of injunction or stay or in any other manner) shall be passed by the tribunal on or in any proceedings relating to any reference unless-

(a) copies of such reference and application for interim order, along with all documents in support of the plea for such interim order are furnished to the party against whom such petition is filed, and

(b) at least fourteen day's time is given to such party to file a reply and opportunity is given to it to be heard in the manner:

Provided that the Tribunal may dispense with the requirements (a) and (b) and may, for reasons to be recorded, make an interim order, as an exceptional measure, if it is satisfied that it is necessary so to do for preventing any loss to the petitioner which cannot be adequately compensated in money, but any such interim order shall, if it is not vacated earlier, cease to have effect on the expiry of the period of 14 days from the date on which it is made unless the said requirements have been complied with before he expiry of the said period and the Tribunal has continued the operation of that order."

23. Section 5 (5-C) of the Act is as hereunder:-

"(5-C) Notwithstanding anything in the forgoing sub- sections, the Tribunal shall have no power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an adverse entry made by an employer against a public servant, and every interim order (whether by way of injunction or stay or in any other manner) in respect of an adverse entry, which was made by a Tribunal before the commencement of the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 2000 and which is in force on the date of such commencement shall stand vacated."

24. The scope of grant of interim order as has been dealt with in the case of Bhuwan Chandra Pandey (supra) and Court observed that "according to Section 5 (5) (j) of the UP Public Services (Tribunals) Act, 1976, which is applicable in the State of Uttaranchal, the Tribunal has a power to pass an interlocutory order pending on the final decision of the order in such terms". It has already been noted that, in para 18 of the judgment, in the case of Bhuwan Chandra Pandey (supra), the Court has categorically held that the fact that the Tribunal has no authority to grant an interim order is no ground to bypass the said Tribunal.

25. Section 5(5-A) of the Act does not bar grant of interim order. It lays down certain conditions in terms of providing copy and sufficient time before grant of such order, but proviso to Section 5 (5-A) of the Act, further empowers the Tribunal to dispense with such requirements also and make an interim order in exceptional cases.

26. In the case of Secretary, Minor Irrigation & Rural Engineering Services UP and others vs Sahngoo Ram Arya And Another, (2002) 5 SCC 521, the Hon'ble Supreme Court had another occasion to deal with this issue when the Court observed "when the statute provided for the constitution of a Tribunal for adjudicating the disputes of a government servant, the fact that Tribunal has no authority to grant an interim order is no ground to bypass the said tribunal." Therefore, it cannot be said that the judgment in the case of Bhuwan Chandra Pandey (supra) is per-incurium. In the case of Bhuwan Chandra Pandey (supra), the question of grant of interim order has been dealt with. As observed hereinbefore, the Tribunal in exceptional cases can without any delay pass an interim order. Therefore, argument made on this point has no force.

27. Insofar as, the provision of Section 5 (5-C) of the Act is concerned, it provides that the Tribunal shall have no power to make interim order in respect of adverse entry. Instant is not a case which may fall under this provision. The issue in the instant case, which the petitioner tried to raise is that for one and same entry he may not be punished twice. The issue can very well be dealt with by the Tribunal.

28. In view of the foregoing discussion, this Court is of the view that the petitioner has an efficacious alternate remedy to seek redressal against his grievance before the Tribunal. Therefore, the writ petition may be entertained under Article 226 of the Constitution of India and it is liable to be dismissed.

29. The writ petition is dismissed.

(Ravindra Maithani, J.) Vacation Judge 19.02.2021 AK/SB