# Dr. R.M.L. Ins. of Medical Science Lko. & Ors v. Dr. Charu Mahajan & Ors

- **Citation:** (2023) 5 ILRA 1700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-15
- **Case number:** Special Appeal No. 228 of 2023
- **Bench:** Devendra Kumar Upadhyaya, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-r-m-l-ins-of-medical-science-lko-ors-v-dr-charu-mahajan-ors-50245
- **Pages:** 15

## Headnote

Service Law-Dr.
Ram
Manohar
Lohia
Institute of Medical Sciences Act, 2015Section 42 - The Constitution of India1950-Article 226- Mere availability of an
alternative remedy not exhausted by the
party approaching this Court invoking writ
jurisdiction, does not oust the jurisdiction
of the Court that will render a writ petition
not maintainable-the petitioner has not
taken recourse to Section 42 of the Act
2015, rather has challenged the order of
the President as communicated to her by
the Director of the Institute by means of
the order dated 22.02.2023. Thus, it
cannot be said that the order of dismissal
from service could not be challenged by
filing writ petition under Article 226 of the
Constitution of India unless it is given
finality by the Visitor of the Institute.
(Para 23, 26 & 37)

Special Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,453 of 52,042. This is a partial read: ask again with offset=39453 for what follows._

1700 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In this conspectus as above, I am
of the considered view that the bonafide
claim of the plaintiff cannot be denied on
hyper technical grounds as tried to be
submitted by the learned counsel for the
appellants, whereas, they have failed to
make out any substantial questions of law
to entertain the instant second appeal
against the judgment and decree, under
challenge, passed by the courts below.

22. After careful consideration of the
matter in hand, I failed to find out any
substantial questions of law so as to
interfere in the concurrent finding of fact
returned by the courts below in exercise of
second appellate jurisdiction under Section
100 CPC. It is settled that with respect to
the questions of fact, the first appellate
court is the last court of facts. At the
second appellate stage, no second appeal
under Section 100 CPC can be entertained
without making out a substantial question
of law. Submission as raised by the learned
Senior Advocate for the appellant cannot
be treated to be a substantial questions of
law in the given circumstances of the
present case.

23. Resultantly, the present writ
petition, being devoid of merits and
misconceived, is dismissed with no order as
to the costs.
----------
(2023) 5 ILRA 1700
APPELLATE JURISDICTION
CIVIL SIDE
DATED:LUCKNOW 15.05.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 228 of 2023

Dr. R.M.L. Ins. of Medical Science Lko. &
Ors. ...Appellants
Versus
Dr. Charu Mahajan & Ors. ...Respondents

Counsel for the Appellants:
Anupras Singh, Sr. Advocate

Counsel for the Respondents:
Gaurav Mehrotra, C.S.C.

Service Law-Dr.
Ram
Manohar
Lohia
Institute of Medical Sciences Act, 2015Section 42 - The Constitution of India1950-Article 226- Mere availability of an
alternative remedy not exhausted by the
party approaching this Court invoking writ
jurisdiction, does not oust the jurisdiction
of the Court that will render a writ petition
not maintainable-the petitioner has not
taken recourse to Section 42 of the Act
2015, rather has challenged the order of
the President as communicated to her by
the Director of the Institute by means of
the order dated 22.02.2023. Thus, it
cannot be said that the order of dismissal
from service could not be challenged by
filing writ petition under Article 226 of the
Constitution of India unless it is given
finality by the Visitor of the Institute.
(Para 23, 26 & 37)

Special Appeal dismissed. (E-15)

List of Cases cited:

1. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., reported in (1998) 8 SCC 1,

2. Godrej Sara Lee Ltd. Vs Excise and Taxation
Officer-cum-Assessing Authority & ors., reported
in 2023 SCC OnLine SC 95

3. M/s Radha Krishan Industries Vs St.of
Himachal
Pradesh
&
ors.,
decided
on
20.04.2021, reported in (2021) 6 SCC 771.

4. Committee of Management & anr. Vs ViceChancellor & ors.(2009) 2 SCC 630

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)
5 All. Dr. R.M.L. Ins. of Medical Science Lko. & Ors. Vs. Dr. Charu Mahajan & Ors.
1701

1. Dr. Ram Manohar Lohia Institute
of Medical Sciences, Lucknow (here-inafter referred to as 'Institute') is before us
in this intra-court appeal filed under
Chapter VIII Rule 5 of the Rules of the
Court
challenging
an
order
dated
13.04.2023 passed by the learned Single
Judge in Writ-A No.2822 of 2023 whereby
the preliminary objection raised on behalf
of
the
appellant-Institute
regarding
maintainability/entertainability of the writ
petition has been overruled and the
appellant-Institute has been required to file
its counter affidavit to the prayer for grant
of interim relief made by the respondent
no.1-petitioner in the writ petition.

2. Heard Shri Asit Kumar Chaturvedi,
Senior Advocate, assisted by Shri Anupras
Singh, learned counsel representing the
appellant-Institute
and
Shri
Gaurav
Mehrotra,
Advocate
representing
the
respondent no.1-petitioner. Learned State
Counsel representing the State-respondents
has also been heard. We have also perused
the records available before us on this
special appeal.

3. At the outset, learned counsel for the
respondent no.1-petitioner has argued that
this special appeal is not maintainable for
the reason that the order under appeal does
not decide any issue; rather by the said
order learned Single Judge has only
entertained the writ petition overruling the
objection of the appellant-Institute that
against the order under challenge in the
writ petition, the respondent no.1-petitioner
has got an alternative remedy under section
42 of Dr. Ram Manohar Lohia Institute of
Medical Sciences Act, 2015 (here-in-after
referred to as 'the Act, 2015') before the
Visitor, as such writ petition ought not to
have been entertained by the learned Single
Judge. Thus, the submission against the
maintainability of this special appeal is that
once the learned Single Judge has decided
to entertain the writ petition overruling the
objection of there being an alternative
remedy, such discretion need not be
interfered with by this Court in this special
appeal.

4.

Replying
to
the
aforesaid
submission made by the learned counsel
representing the respondent no.1-petitioner
regarding maintainability of this intra-court
appeal, Shri Chaturvedi, learned Senior
Advocate has strenuously argued that in the
wake of availability of statutory alternative
remedy under section 42 of the Act, 2015,
which is efficacious too, learned Single
Judge has erred in law in maintaining the
writ petition. In his submission, he has
urged that the writ petition is not
maintainable in view of the aforesaid and it
ought to have been dismissed relegating the
respondent no.1-petitioner to the remedy
under section 42 of the Act, 2015. In
support of his submission, Shri Chaturvedi
has placed reliance on the judgments in the
case of (i) Dr. G. Sarana vs. University of
Lucknow and others, reported in (1976) 3
SCC 585, (ii) State of Goa and others vs.
Leukoplast (India) Ltd, reported in (1997) 4
SCC 82, (iii) A. P. Foods vs. S. Samuel and
others, reported in (2006) 5 SCC 469, (iv)
Transport and Dock Workers Union and
others vs. Mumbai Port Trust and another,
reported in (2011) 2 SCC 575, (v) Ansal
Housing and Construction Ltd. vs. State of
Uttar Pradesh and others, reported in
(2016) 13 SCC 305 and (vi) Krishna
Kumar vs. Director, Sanjay Gandhi Post
Graduate Institute of Medical Sciences,
reported in (2008) LawSuit (All) 1060.

5. We have carefully considered the
rival submissions made by the learned
counsel representing the respective parties.
1702 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Before dealing with the competing
submissions made by the parties, we find it
appropriate to notice certain facts, which
can be gathered from the pleadings
available on record, as also from the
submissions made by the learned counsel
for the parties.

7. The Institute was initially started as
a Centre of Sanjay Gandhi Post Graduate
Institute of Medical Sciences to make
available super-speciality medical care. It
was initially registered under the Societies
Registration Act, 1860 and was functioning
as autonomous Institution since the year
2006. The State Government, however,
decided to provide for conferring on the
said Institute status of a University so as to
ensure
that
Institute
functions
more
efficiently as a Teaching and Research
Centre to meet the requirement of Higher
Education and Research in Medical, ParaMedical
and
Allied
Health
Service.
Accordingly the State Legislature enacted
the Act, 2015 (U.P. Act No.41 of 2018)
which inter alia provided for establishing of
the institute on the pattern of All India
Institute of Medical Sciences, New Delhi.

8. As per section 5 of the Act, 2015
the Institute consists of various members
which include the Governor of Uttar
Pradesh who is its Visitor (ex-officio) and
the Chief Secretary of the Government of
Uttar Pradesh, who is its President (exofficio). Section 10 of the Act, 2015
provides that the Visitor, the President, the
Vice-President, the Director, the Dean of
the Institute, the Finance Officer and such
other officers as may be required by the
Regulation, are the officers of the Institute.
Section 11 of the said Act provides that the
Governor of Uttar Pradesh shall be the
Visitor of the Institute. Sub-section 6 of
section 11 provides that subject to the
provisions of section 42, the Visitor may,
by an order in writing, annul any
proceeding of the Institute if the same is
not found in conformity with the Act or the
Rules or the Regulations made under the
Act. As per Section 12 of the Act, 2015 the
Chief Secretary of Uttar Pradesh is the
President of the Institute and he is also the
Chairman of the Governing Body. Section
18 defines the authorities of the Institute
which includes Board of Governors.
Section 19 states that the Board of
Governors shall be the principal governing
body of the Institute which shall consist of
the Chief Secretary, Government of Uttar
Pradesh being its Chairperson (ex-officio).
Section
26
provides
that
Professors,
Associate Professors, Assistant Professors
and Group 'A' Officers of the Institute shall
be appointed by the Chairperson of the
Governing Body i.e. the Chief Secretary of
the Government of Uttar Pradesh. Section
34 empowers the Institute to make
regulations with the previous approval of
the State Government to provide for the
matters enumerated therein. Section 40
empowers the State Government to issue
such directions on policy matters from time
to time which shall not be inconsistent with
the provisions of the Act. It further
provides that such a direction shall be
complied with by the Institute. Apart from
power of issuing directions, the State
Government has also been vested with the
power to cause inspection of the Institute.

9. Section 42 of the Act, 2015, with
which we are concerned in this case,
provides that if an issue arises whether any
person has been elected or appointed or is
entitled to be a member of the Institute,
Governing Body, any authority or any body
of the Institute or whether any decision of
the Institute, Governing Body or any
authority or body of the Institute is in
5 All. Dr. R.M.L. Ins. of Medical Science Lko. & Ors. Vs. Dr. Charu Mahajan & Ors.
1703
conformity with the Act or the rules or
regulations, the matter shall be referred to
the Visitor and the decision of the Visitor in
that regard shall be final. The first proviso
appended to section 42 provides that no
reference under the said provision shall be
made more than three months after the due
date when the question could have been
raised for the first time. Further, the second
proviso empowers the Visitor to act suo
motu or entertain a reference after expiry of
the period of three months in exceptional
circumstances. Section 42 of the Act, 2015
is quoted herein below:

"42. If any question arises whether
any person has been duly elected or
appointed as or is entitled to be, a member
of the Institute, Governing Body, any
authority or other body of the Institute or
not, or whether any decision of the
Institutes,
Governing
Body
or
any
authority or other body of the Institute is
in conformity with this Act or the rules or
regulations made thereunder or not, the
matter shall be referred to the Visitor and
the decision of the Visitor shall be final."

10. Having noticed the broad scheme of
the Act, we now proceed to narrate the facts
which engage our attention in this case. An
advertisement was issued by the Institute
on 08.09.2016 inviting applications for
filling up various vacant teaching posts in
several departments including two posts of
Assistant Professor in the Department of
Obstetrics & Gynaecology. The essential
qualification
mentioned
in
the
advertisement was as per MCI (Medical
Council
of
India)
requirement.
The
advertisement further provided that medical
qualification as essential qualification shall
be
as
provided
in
the
"Minimum
Qualification for Teachers in Medical
Institutions
Regulations,
1998"
with
amendments. For the post of Assistant
Professor, the requisite experience as
advertised in the advertisement was three
years teaching experience after prescribed
Post-Graduate (MD/MS/PhD etc.) at a
recognized teaching institution as on
30.06.2016.
The
post
of
Assistant
Professor, Obstetrics & Gynecology is
mentioned at serial no. 29 in the said
advertisement. Against the said post the
"Minimum Qualification" prescribed is
MD/MS
(Obstetrics
&
Gynaecology).
Along with educational qualification, the
advertisement mentioned requirement of
three
years
post
MD/MS
teaching
experience in the subject in a recognized
medical college/teaching institution as
Senior
Resident/Registrar/
Demonstrator/Tutor/Lecturer.

11. The petitioner considering herself
to be eligible made her application for
appointment to the post of Assistant
Professor (Obstetrics & Gynaecology)
against the advertisement dated 08.09.2016
and was subjected to selection. On the basis
of selection held, she was appointed on the
post of Maternity and Child Welfare-cumLecturer/Assistant
Professor
in
the
Obstetrics and Gynaecology in the regular
scale of pay of Rs.15600-39100 with
Academic Grade Pay of Rs.8,700/-.

12. The said appointment was made
under the appointment order issued by the
Director of the Institute on 16.12.2016. On
her appointment, the respondent no.1petitioner assumed her charge on the said
post and had since then been discharging
the functions and duties of her post.

13. A Public Interest Litigation (Civil)
No.24194 of 2018 was filed before this
Court with the prayer to issue direction to
the
State
Government
as
also
the
1704 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities of the Institute to act upon a
report dated 25.04.2018 based on an
enquiry conducted by the Director General
of Medical Education, Uttar Pradesh
against the then Director of the Institute
regarding alleged malpractices in selection
of teaching faculties at the Institute. The
said P.I.L was disposed of, noticing that the
Director General, Medical Education had
conducted an enquiry and submitted a
report dated 28.06.2019 and in the said
enquiry certain discrepancies were noticed
and the matter was pending before the State
Government, with the direction to take
appropriate action pursuant to the enquiry
report
dated
28.06.2016. The
matter
thereafter appears to have been considered
by the Board of Governors in its meeting
held on 30.07.2020 wherein it was
observed by the Board of Directors that the
respondent no.1-petitioner was appointed
on the post of Assistant Professor in the
concerned
department
irregularly
and
accordingly the Board of Directors decided
that the Director should take appropriate
action for termination of service of the
respondent no.1-petitioner treating her
appointment to be void ab initio.

14. A show cause notice was
thereafter issued by the Director on
11.02.2021 intimating the respondent no.1petitioner that the Board of Directors in its
meeting held on 30.07.2020 had taken a
decision to terminate her services treating
her appointment to be void ab initio and
accordingly she should explain within a
fortnight as to why her services as Assistant
Professor, Obstetrics & Gynecology should
not be terminated in the light of the
findings recorded and decision taken by the
Board of Directors in its meeting dated
30.07.2020. The respondent no.1-petitioner
submitted her reply to the said show cause
notice on 23.02.2021 denying the allegation
that the respondent no.1-petitioner did not
fulfill the requisite teaching experience and
that there was no illegality in her
appointment hence the show cause notice
given to her for termination of her services
being bad in law, was liable to be recalled.

15. Instead of acting upon the show cause
notice dated 11.02.2021 and the reply
submitted by the respondent no.1-petitioner
to the said show cause notice on
23.02.2021,
a
charge-sheet
dated
18.01.2022 was issued to the respondent
no.1-petitioner with the sole allegation that
she had applied for appointment in question
vide her application dated 26.09.2016
allegedly mentioning wrong facts about her
experience and she got her appointment
accordingly. The documents relied upon in
the said charge-sheet were -- (i) photo copy
of application form of the respondent no.1petitioner, (ii) photo copy of her experience
certificates and (iii) photo copy of Enquiry
Report submitted by the Director General,
Medical Education & Training, U.P. The
respondent no.1-petitioner submitted her
reply to the said show cause notice on
31.01.2022 stating therein that she had not
furnished any wrong facts relating to her
teaching experience while making her
application
against
the
advertisement.
Nothing was done in pursuance of the said
charge-sheet dated 18.01.2022, instead
another charge-sheet was issued to the
respondent
no.1-petitioner,
dated
04.02.2022 which contained the same
allegation as mentioned in the charge-sheet,
dated 18.01.2022, except that in support of
the charge apart from relying on the three
documents as mentioned in the chargesheet
dated
18.01.2022,
two
more
documents were relied upon, one of which
was the photo copy of the advertisement
and the other was the MCI Regulations,
1998 as amended till 13th July, 2016.
5 All. Dr. R.M.L. Ins. of Medical Science Lko. & Ors. Vs. Dr. Charu Mahajan & Ors.
1705

16. The respondent no.1-petitioner
submitted her reply to the said charge-sheet
on 22.02.2022 denying the allegations
levelled against her and stating therein that
the charge had wrongly been framed
against her for the reason that the
respondent no.1-petitioner did not conceal
any fact. She also stated that in case
reply/explanation furnished by her is not
accepted, she shall cross-examine the
members of the Scrutiny Committee, Dr.
Reena Srivastava, Professor, Obstetrics &
Gynaecology, B. R. D. Medical College,
Gorakhpur, Dr. Alka Kriplani, Professor,
Obstetrics & Gynaecology, All India
Institute of Medical Sciences, New Delhi,
Dr. Deepak Malviya, Member of the
Selection Committee and the Director
General Medial Education, U.P., another
member of the Selection Committee.

17. The respondent no.1-petitioner
also furnished a supplementary reply to the
charge-sheet on 12.04.2022. The Enquiry
Officer submitted the enquiry report which
was served upon the respondent no.1petitioner by means of a letter dated
04.07.2022 by the Executive Registrar of
the Institute requiring her to submit her
response to the enquiry report. The
respondent
no.1-petitioner
accordingly
submitted her comments on the enquiry
report vide letter dated 20.07.2022 stating
inter alia that she had requested for an oral
enquiry to cross-examine five persons as
mentioned by her in the reply submitted to
the
charge-sheet
and
hence
it
was
obligatory on the part of the enquiry officer
to have fixed a date for such oral enquiry
after calling the witnesses. She also stated
that the enquiry officer had relied upon the
opinion of the Director General, Medical
Education, U.P., who despite request, was
not produced during the course of enquiry
permitting her to cross-examine him. The
appellant-petitioner also challenged the
findings recorded by the enquiry officer in
the enquiry report and lastly submitted that
the enquiry conducted against her was inter
alia against the principles of natural justice.

18. Thereafter an office order dated
22.02.2023 has been passed by the Director
with the approval and in compliance of the
order of the President of the Institute
whereby the respondent no.1-petitioner has
been dismissed from service of the Institute
without any bar for applying for future
recruitment under the Government.

19. It is the aforesaid order dated
22.02.2023 issued by the Director with the
approval of the President whereby she has
been dismissed from service which has
been challenged by the respondent no.1petitioner by instituting Writ-A No.2822 of
2023. Apart from challenging the office
order dated 22.02.2023, the respondent
no.1-petitioner has also challenged the
resolution of the Board of Directors dated
30.07.2020 whereby it was decided that
treating the appointment of the respondent
no.1-petitioner to be void ab initio, the
Director must take appropriate decision for
terminating her services.

20. The objection regarding the very
maintainability of the writ petition as
argued by the appellant-Institute, has been
overruled by the learned Single Judge by
means of the order which is under appeal
before us. The learned Single Judge has
decided to exercise his discretion to
entertain the writ petition.

22. In the aforesaid facts and
circumstances, the question which falls for
our consideration is as to whether the order
dated 13.04.2023 passed by the learned
Single Judge which is under appeal herein,
1706 INDIAN LAW REPORTS ALLAHABAD SERIES
whereby the writ petition filed by the
respondent
no.1-petitioner
has
been
entertained and the learned Single Judge
has decided to exercise his discretion in the
matter, is liable to be interfered with in this
special appeal or not?

22. Quoting the judgment of Hon'ble
Supreme Court in the case of Whirlpool
Corporation vs. Registrar of Trade Marks,
Mumbai and others, reported in (1998) 8
SCC 1, learned Single Judge has observed
that the facts of the case presented before
him, persuaded him to exercise his
discretion for entertaining the writ petition.

23. There cannot be any quarrel on
the legal proposition that exercise of
jurisdiction under Article 226 of the
Constitution of India by the High Courts is
discretionary. There is also no dispute to
the legal principle that availability of
alternative remedy provided by the relevant
statute is not an absolute bar to entertain a
writ petition; rather the High Court has
discretion whether to entertain the writ
petition or not bearing in mind the facts of
the case being brought before the Court.
One of the self- imposed restrictions on
entertaining a writ petition is that this Court
should not normally entertain the writ
petition where effective and efficacious
alternative remedy is available, however,
simultaneously it should also be borne in
mind that mere availability of an alternative
remedy not exhausted by the party
approaching this Court invoking writ
jurisdiction, does not oust the jurisdiction
of the Court that will render a writ petition
not maintainable.

24.

Underlying
the
distinction
between
"entertainability
and
maintainability" of writ petition in the wake
of availability of alternative remedy, the
Hon'ble
Supreme
Court
in
a
latest
pronouncement in the case of Godrej Sara
Lee Ltd. vs. Excise and Taxation Officercum-Assessing Authority
and
others,
reported in 2023 SCC OnLine SC 95, has
held that the exceptions carved out in the
case of Whirlpool Corporation (supra) to
entertain a writ petition even in the wake of
availability of alternative remedy have to
be kept in mind. Paragraphs 4 to 8 of the
judgment in the case of Godrej Sara Lee
Ltd.(supra) are relevant which are extracted
hereunder:

"4. Before answering the questions,
we feel the urge to say a few words on the
exercise of writ powers conferred by
Article 226 of the Constitution having
come across certain orders passed by the
high courts holding writ petitions as "not
maintainable"
merely
because
the
alternative
remedy
provided
by
the
relevant statutes has not been pursued by
the parties desirous of invocation of the
writ jurisdiction. The power to issue
prerogative writs under Article 226 is
plenary in nature. Any limitation on the
exercise of such power must be traceable
in the Constitution itself. Profitable
reference in this regard may be made to
Article 329 and ordainments of other
similarly
worded
articles
in
the
Constitution. Article 226 does not, in
terms, impose any limitation or restraint
on the exercise of power to issue writs.
While it is true that exercise of writ
powers despite availability of a remedy
under the very statute which has been
invoked and has given rise to the action
impugned in the writ petition ought not to
be made in a routine manner, yet, the
mere fact that the petitioner before the
high court, in a given case, has not
pursued the alternative remedy available
to
him/it
cannot
mechanically
be
5 All. Dr. R.M.L. Ins. of Medical Science Lko. & Ors. Vs. Dr. Charu Mahajan & Ors.
1707
construed as a ground for its dismissal. It
is axiomatic that the high courts (bearing
in mind the facts of each particular case)
have a discretion whether to entertain a
writ petition or not. One of the selfimposed restrictions on the exercise of
power under Article 226 that has evolved
through judicial precedents is that the
high courts should normally not entertain
a writ petition, where an effective and
efficacious alternative remedy is available.
At the same time, it must be remembered
that mere availability of an alternative
remedy of appeal or revision, which the
party invoking the jurisdiction of the high
court under Article 226 has not pursued,
would not oust the jurisdiction of the high
court and render a writ petition "not
maintainable". In a long line of decisions,
this Court has made it clear that
availability of an alternative remedy does
not operate as an absolute bar to the
"maintainability" of a writ petition and
that the rule, which requires a party to
pursue the alternative remedy provided by
a statute, is a rule of policy, convenience
and discretion rather than a rule of law.
Though elementary, it needs to be restated
that
"entertainability"
and
"maintainability" of a writ petition are
distinct concepts. The fine but real
distinction between the two ought not to be
lost sight of. The objection as to
"maintainability" goes to the root of the
matter and if such objection were found to
be of substance, the courts would be
rendered incapable of even receiving the
lis for adjudication. On the other hand,
the question of "entertainability" is
entirely within the realm of discretion of
the high courts, writ remedy being
discretionary. A writ petition despite being
maintainable may not be entertained by a
high court for very many reasons or relief
could even be refused to the petitioner,
despite setting up a sound legal point, if
grant of the claimed relief would not
further public interest. Hence, dismissal of
a writ petition by a high court on the
ground that the petitioner has not availed
the alternative remedy without, however,
examining whether an exceptional case
has been made out for such entertainment
would not be proper.

5. A little after the dawn of the
Constitution, a Constitution Bench of this
Court in its decision reported in 1958 SCR
595 (State of Uttar Pradesh v. Mohd.
Nooh) had the occasion to observe as
follows:

"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 Edn., 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. ***"
1708 INDIAN LAW REPORTS ALLAHABAD SERIES

6. At the end of the last century, this
Court in paragraph 15 of the its decision
reported in (1998) 8 SCC 1 (Whirlpool
Corporation v. Registrar of Trade Marks,
Mumbai) carved out the exceptions on the
existence whereof a Writ Court would be
justified in entertaining a writ petition
despite the party approaching it not
having availed the alternative remedy
provided by the statute. The same read as
under:

(i) where the writ petition seeks
enforcement of any of the fundamental
rights;

(ii) where there is violation of
principles of natural justice;

(iii)
where
the
order
or
the
proceedings
are
wholly
without
jurisdiction; or

(iv) where the vires of an Act is
challenged.

7. Not too long ago, this Court in its
decision reported in 2021 SCC OnLine SC
884 (Assistant Commissioner of State Tax
v.
Commercial
Steel
Limited)
has
reiterated
the
same
principles
in
paragraph 11.

8. That apart, we may also usefully
refer to the decisions of this Court
reported in (1977) 2 SCC 724 (State of
Uttar Pradesh v. Indian Hume Pipe Co.
Ltd.) and (2000) 10 SCC 482 (Union of
India v. State of Haryana). What appears
on a plain reading of the former decision
is that whether a certain item falls within
an entry in a sales tax statute, raises a
pure question of law and if investigation
into facts is unnecessary, the high court
could entertain a writ petition in its
discretion even though the alternative
remedy was not availed of; and, unless
exercise of discretion is shown to be
unreasonable or perverse, this Court
would not interfere. In the latter decision,
this Court found the issue raised by the
appellant to be pristinely legal requiring
determination by the high court without
putting the appellant through the mill of
statutory appeals in the hierarchy. What
follows from the said decisions is that
where the controversy is a purely legal one
and it does not involve disputed questions
of fact but only questions of law, then it
should be decided by the high court
instead of dismissing the writ petition on
the ground of an alternative remedy being
available."

25. The exceptions carved out in the
case of Whirlpool Corporation (supra) are
as under:

(i) where the party approaching the
Court seeks enforcement of any of the
fundamental rights,

(ii) there is violation of principles of
natural justice,

(iii)
where
the
order
or
the
proceedings are wholly without jurisdiction
or
(iv) where the vires of an Act is under
challenge.

26. Before the judgment by the Apex
Court in the case of Godrej Sara Lee Ltd.
(supra) similar observations were made
and legal principle was enunciated by
Hon'ble Supreme Court in the case of M/s
Radha Krishan Industries vs. State of
Himachal Pradesh and others, decided on
20.04.2021, reported in (2021) 6 SCC 771.
After
discussing
various
judgments,
Hon'ble Supreme Court has also considered
the legal principle evolved by the Apex
Court in the case of Whirlpool Corporation
(supra) and enunciated the principle of law
in para 24 of the said judgment. One of the
legal
principles
evolved
by
Hon'ble
Supreme Court in the case of M/s Radha
Krishan Industries (supra) is that there are
5 All. Dr. R.M.L. Ins. of Medical Science Lko. & Ors. Vs. Dr. Charu Mahajan & Ors.
1709
certain exceptions to the rule of alternative
remedy and such exceptions are that where
a
writ
petition
has
been
filed
for
enforcement of fundamental right protected
by Part-III of the Constitution of India,
where there has been a violation of
principles of natural justice, where the
order or the proceedings are wholly without
jurisdiction and where the vires of
legislation is challenged. Hon'ble Supreme
Court in the said case of M/s Radha
Krishan Industries (supra) has also held
that an alternative remedy by itself does not
divest the High Court of its power under
Article 226 of the Constitution of India in
an appropriate case though ordinarily, a
writ petition should not be entertained
when an efficacious and alternative remedy
is provided by law. It has also been held in
the said case by the Apex Court that Rule
of exhaustion of statutory remedies is a rule
of policy, convenience and discretion.
Paragraphs 24 to 27 of the Judgment in the
case of M/s Radha Krishan Industries
(supra) read as under:-

"24. The High Court has dealt with
the maintainability of the petition under
Article 226 of the Constitution. Relying on
the decision of this Court in CCT v. Glaxo
Smith Kline Consumer Health Care Ltd.
[CCT v. Glaxo Smith Kline Consumer
Health Care Ltd., (2020) 19 SCC 681 :
2020 SCC OnLine SC 440] , the High
Court noted that although it can entertain
a petition under Article 226 of the
Constitution, it must not do so when the
aggrieved
person
has
an
effective
alternate
remedy
available
in
law.
However, certain exceptions to this "rule
of alternate remedy" include where, the
statutory authority has not acted in
accordance with the provisions of the law
or acted in defiance of the fundamental
principles of judicial procedure; or has
resorted to invoke provisions, which are
repealed; or where an order has been
passed in violation of the principles of
natural justice. Applying this formulation,
the High Court noted that the appellant
has an alternate remedy available under
the GST Act and thus, the petition was not
maintainable.

25. In this background, it becomes
necessary for this Court, to dwell on the
"rule of alternate remedy" and its judicial
exposition.
In
Whirlpool
Corpn.
v.
Registrar of Trade Marks [Whirlpool
Corpn. v. Registrar of Trade Marks,
(1998) 8 SCC 1] , a two-Judge Bench of
this Court after reviewing the case law on
this point, noted : (SCC pp. 9-10, paras
14-15)

"14. The power to issue prerogative
writs under Article 226 of the Constitution
is plenary in nature and is not limited by
any other provision of the Constitution.
This power can be exercised by the High
Court not only for issuing writs in the
nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari
for the enforcement of any of the
Fundamental Rights contained in Part III
of the Constitution but also for "any other
purpose".
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
1710 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(emphasis supplied)

26. Following the dictum of this
Court
in
Whirlpool
(supra)
,
in
Harbanslal Sahnia v. Indian Oil Corpn.
Ltd., this Court noted that :

"7. So far as the view taken by the
High Court that the remedy by way of
recourse
to
arbitration
clause
was
available to the appellants and therefore
the writ petition filed by the appellants was
liable to be dismissed is concerned, suffice
it to observe that 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. (See Whirlpool
Corpn.v.
Registrar
of
Trade
Marks
[Whirlpool Corpn. v. Registrar of Trade
Marks, (1998) 8 SCC 1] .) The present
case attracts applicability of the first two
contingencies. Moreover, as noted, the
appellants' dealership, which is their
bread and butter, came to be terminated
for an irrelevant and non-existent cause.
In such circumstances, we feel that the
appellants should have been allowed relief
by the High Court itself instead of driving
them to the need of initiating arbitration
proceedings."

(emphasis supplied)

27. The principles of law which
emerge are that:

1. The power under Article 226 of the
Constitution
to
issue
writs
can
be
exercised not only for the enforcement of
fundamental rights, but for any other
purpose as well.

2. The High Court has the discretion
not to entertain a writ petition. One of the
restrictions placed on the power of the
High Court is where an effective alternate
remedy is available to the aggrieved
person.

3. Exceptions to the rule of alternate
remedy arise where : (a) the writ petition
has been filed for the enforcement of a
fundamental right protected by Part III of
the Constitution; (b) there has been a
violation of the principles of natural
justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the
vires of a legislation is challenged.

4. An alternate remedy by itself does
not divest the High Court of its powers
under Article 226 of the Constitution in an
appropriate case though ordinarily, a writ
petition should not be entertained when
an
efficacious
alternate
remedy
is
provided by law.

5. When a right is created by a
statute, which itself prescribes the remedy
or procedure for enforcing the right or
liability, resort must be had to that
particular
statutory
remedy
before
invoking the discretionary remedy under
Article 226 of the Constitution. This rule
of exhaustion of statutory remedies is a
rule of policy, convenience and discretion.

6. In cases where there are disputed
questions of fact, the High Court may
decide to decline jurisdiction in a writ
petition. However, if the High Court is
5 All. Dr. R.M.L. Ins. of Medical Science Lko. & Ors. Vs. Dr. Charu Mahajan & Ors.
1711
objectively of the view that the nature of
the controversy requires the exercise of its
writ jurisdiction, such a view would not
readily be interfered with."

27. Yet in another case reported in
(2009)
2
SCC
630,
Committee
of
Management and
another
vs.
ViceChancellor
and
others,
which
had
emanated from a judgment of this Court in
relation to the provisions contained in
Section 68 of U.P. State Universities Act,
1973 which is similarly worded as section
42 of the Act 2015, Hon'ble Supreme Court
has held that alternative remedy is not an
absolute bar and relegation to alternative
remedy will not be warranted where an
order passed by an authority is without
jurisdiction or the same is in violation of
principles of natural justice. Section 68 of
the U.P. State Universities Act,1973, in
respect of which Hon'ble Supreme Court
has made the aforesaid observations in the
case of Committee of Management and
another (supra) is extracted herein below:

"68.