# Roshan Lal v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 839
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-11
- **Case number:** Special Appeal No. 1519 of 2009
- **Bench:** C.K. Prasad, C.J. Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/roshan-lal-v-state-of-u-p-and-others-41533
- **Pages:** 6

## Headnote

Constitution
of
India,
Act-226
Alternative Remedy-After exchange of
Counter and Rejoinder affidavits-after
long time of interval-dismissal on ground
of alternative remedy-held-not proper.

Held: Para 14&15

Bearing in mind the aforesaid principle,
when we consider the facts of the case,
we are of the opinion that the learned
Judge, after having entertained the writ
petition, directed the parties to file
counter and rejoinder affidavits and that
having already been done, at such a
distance of time, ought not to have
dismissed the writ petition on the
ground of alternative remedy.

We hasten to add that after exchange of
pleadings, the Court may not be in a
position to decide the disputed question
of fact, for the reason that for deciding
the same, evidence may be required to
be laid, and in such circumstance the
writ petition cannot be dismissed on the
ground of alternative remedy but on the
ground that the issue of fact cannot be
decided in a writ petition.
Case law discussed:
AIR 2002 SC 2225, AIR 1971 SC 33, (2004) 13
SCC 665, (1998)2 UPLBEC 1154, (2006) 1
UPLBEC 1012, 2006(8) ADJ 646.

## Text

3 All] Roshan Lal V. State of U.P. and others
839
does not fulfil the criteria, as required,
after making inspection should have
submitted a report to the National Council
of Teachers Education for passing the
appropriate orders. Once recognition has
been given, affiliation can be withdrawn
in a proper manner provided under the
statute. If it has not been adopted, the
order passed by respondents will not be
just and proper.

21. In view of aforesaid fact, writ
petition is allowed. The order dated
11.3.2007 is hereby quashed and the
matter is remanded back to appropriate
respondent to pass the appropriate orders
in accordance with law after affording full
opportunity to petitioners by a speaking
and reasoned order, if possible, within a
period of three months from the date of
production of certified copy of this order.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE SANJAY MISRA, J.

Special Appeal No. 1519 of 2009

Roshan Lal

...Appellant
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Appellant:
Sri Kripa Shanker Singh

Counsel for the Respondents:
Sri M.S. Pipersenia
S.C.

Constitution
of
India,
Act-226
Alternative Remedy-After exchange of
Counter and Rejoinder affidavits-after
long time of interval-dismissal on ground
of alternative remedy-held-not proper.

Held: Para 14&15

Bearing in mind the aforesaid principle,
when we consider the facts of the case,
we are of the opinion that the learned
Judge, after having entertained the writ
petition, directed the parties to file
counter and rejoinder affidavits and that
having already been done, at such a
distance of time, ought not to have
dismissed the writ petition on the
ground of alternative remedy.

We hasten to add that after exchange of
pleadings, the Court may not be in a
position to decide the disputed question
of fact, for the reason that for deciding
the same, evidence may be required to
be laid, and in such circumstance the
writ petition cannot be dismissed on the
ground of alternative remedy but on the
ground that the issue of fact cannot be
decided in a writ petition.
Case law discussed:
AIR 2002 SC 2225, AIR 1971 SC 33, (2004) 13
SCC 665, (1998)2 UPLBEC 1154, (2006) 1
UPLBEC 1012, 2006(8) ADJ 646.

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. This intra-Court appeal, at the
instance of the writ petitioner-appellant,
under Rule 5 Chapter VIII of the
Allahabad High Court Rules, 1952, arises
out of an order dated 24.07.2009 passed
by a learned Judge in Civil Misc. Writ
Petition No. 39776 of 2001.

2. Shorn of unnecessary details,
facts giving rise to the present appeal are
that
the
writ
petitioner-appellant,
hereinafter referred to as the 'petitioner',
filed the writ petition, inter alia, praying
for quashing the order dated 19.06.2000
840 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
passed by the Commissioner, Gorakhpur
Division, Gorakhpur whereby the prayer
made by the petitioner to appoint him on
the post of Clerk treating him as a
retrenched employee, had been rejected.
Petitioner earlier approached this Court
by filing Civil Misc. Writ Petition No.
18201 of 1998, inter alia, contending that
he is a retrenched employee and,
therefore, fit to be considered for
appointment on a Class-III post as a
retrenched employee. The said writ
petition was disposed off by this Court by
order dated 21.01.2000 and while doing
so, it directed as follows:-

"In case the Commissioner comes to
the conclusion that the petitioner is in fact
a retrenched employee of Food and Civil
Supply Department in that event the
question of appointment of the petitioner
on Class III post as retrenched employee
shall be considered by the competent
authority
according
to
law
and
Government orders on the point."

3. In the light of the aforesaid order,
the Commissioner had passed the order
impugned in the writ petition, which was
filed on 27.11.2001. The writ petition was
posted for consideration before this Court
on 03.12.2001, and at the request of the
Standing
Counsel
representing
respondents,
the
writ
petition
was
adjourned by granting one month's time to
the respondents to file counter affidavit
and two weeks' time thereafter to the
petitioner to file rejoinder affidavit. As
directed by the Court, the respondents
filed counter affidavit on 15.01.2002 and
the petitioner filed rejoinder affidavit on
16.04.2002. Thereafter, the matter was
taken up on 24.07.2009 when the learned
Judge, relying on a Full Bench decision of
this Court in the case of Chandrama Singh
Vs. Managing Director, U.P. Co-operative
Union, Lucknow & Ors., (1991) 2
UPLBEC 898, dismissed the writ petition
on the ground of alternative remedy and it
is this order, which has been impugned in
the present appeal.

4. As the order of the learned Judge
is founded on the Full Bench decision of
this Court in the case of Chandrama Singh
(supra),
we
deem
it
expedient
to
reproduce the ratio of the said case, which
reads as follows:-

"14. On the pleadings contained in
the instant petition the petitioner should
not be allowed to invoke the jurisdiction
of this Court under Article 226 of the
Constitution of India. The petitioner has
complained violation of the provisions of
Section 25-F of the Industrial Disputes
Act, 1947 and for redressal of his
grievance an adequate and efficacious
remedy of reference under the provisions
of Section 10 of the said Act itself exists.
The petitioner has neither pleaded nor
proved the said remedy to be inadequate
or
inefficacious.
He
has
also
not
demonstrated
the
existence
of
any
exceptional
or
extraordinary
circumstances to permit him to by-pass
the alternative remedy available to him
under the Industrial Disputes Act, 1947.
The petition deserves to be dismissed on
the ground of availability of alternative
remedy to the petitioner."

5. In fairness, Mr. Kripa Shanker
Singh, counsel for the petitioner, submits
that the petitioner had the remedy under
the U.P. Industrial Disputes Act, but once
the writ petition was entertained and the
parties had exchanged their pleadings, at
such distance of time, the learned Judge
ought not to have dismissed the writ
3 All] Roshan Lal V. State of U.P. and others
841
petition on the ground of alternative
remedy.

6. Mr. M.S. Pipersenia, Standing
Counsel, appearing on behalf of the
respondents, however, submits that in the
face of the alternative remedy, the learned
Judge did not err in dismissing the writ
petition. In support of the submission, he
has placed reliance on a decision of the
Supreme Court in the case of Secretary,
Minor Irrigation and Rural Engineering
Services, U.P. & Ors. Vs. Sahngoo Ram
Arya & Anr., AIR 2002 SC 2225, and our
attention has been drawn to paragraph 12
of the judgment, which reads as follows:-

"12. Mr. Sunil Gupta, learned
counsel appearing for the petitioner,
contended that the remedy before the
tribunal under the U.P. Public Service
Tribunal Act is wholly illusory inasmuch
as the tribunal has no power to grant an
interim order. Therefore, he contends that
the High Court ought not to have
relegated the petitioner to a fresh
proceeding before the said tribunal. We
do not agree with these arguments of the
learned counsel. When the statute has
provided for the constitution of a tribunal
for adjudicating the disputes of a
Government servant, the fact that the
tribunal has no authority to grant an
interim order is no ground to by-pass the
said tribunal. In an appropriate case after
entertaining the petitions by an aggrieved
party if the tribunal declines an interim
order on the ground that it has no such
power then it is possible that such
aggrieved party can seek remedy under
Article 226 of the Constitution but that is
no ground to by-pass the said tribunal in
the first instance itself. Having perused
the impugned order, we find no infirmity
whatsoever in the said order and the High
Court was justified in directing the
petitioner to approach the tribunal. In the
said view of the matter, the appeals are
dismissed. No costs."

7. It is well settled that existence of
alternative remedy does not bar the
jurisdiction of this Court. It is a matter of
discretion and not jurisdiction. It is self
imposed discipline, wherein when an Act
provides for a complete machinery for
seeking redress, the writ Court declines to
interfere in the matter and relegate a
litigant to the remedy provided under the
Statute. Power under Article 226 of the
Constitution is not intended to circumvent
statutory procedure but it is not an
absolute bar and merely a factor, which
requires consideration while exercising
the power. Dismissal of the writ petition
on the ground of alternative remedy long
after its filing and exchange of pleadings,
may lead to shutting the door of
alternative remedy itself. Provisions of
alternative remedy in many of the cases
provide for limitation and in case writ
petitions are dismissed after exchange of
pleadings after a long time, the damage
cannot be countenanced.

8. In the present case, we proceed on
an assumption that the petitioner has
alternative remedy, but the question
which falls for determination is as to
whether in the facts of the present case,
wherein the writ petition filed on
27.11.2001
was
entertained
and
respondents and petitioner granted time to
file counter affidavit and rejoinder and
they having exchanged the pleadings, the
learned Judge was right in dismissing the
writ petition on 24.07.2009 on the ground
of alternative remedy.
842 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
9. Having given our anxious
consideration to the question involved, we
are of the opinion that the learned Judge
erred in dismissing the writ petition on the
ground of existence of alternative remedy
at such a distance of time. The point in
issue is no more res integra, as the
Supreme Court had the occasion to
consider the same in the case of L. Hirday
Narain Vs. Income-Tax Officer, Bareilly,
AIR 1971 SC 33, in which it has been
held as follows:-

"12. An order under Section 35 of
the Income-tax Act is not appealable. It is
true that a petition to revise the order
could be moved before the Commissioner
of Income-tax. But Hirday Narain moved
a petition in the High Court of Allahabad
and the High Court entertained that
petition. If the High Court had not
entertained his petition, Hirday Narain
could have moved the Commissioner in
revision, because at the date on which the
petition was moved the period prescribed
by Section 33-A of the Act had not
expired. We are unable to hold that
because a revision application could have
been moved for an order correcting the
order of the Income-tax Officer under
Section 35, but was not moved, the High
Court would be justified in dismissing as
not maintainable the petition, which was
entertained and was heard on the merits."
... ... (Underlining ours)

10. The Supreme Court had also
considered this issue in the case of Durga
Enterprises (P) Ltd. & Anr. Vs. Principal
Secretary, Govt. of U.P. & Ors., (2004)
13 SCC 665 in which, in categorical
terms, it has been held that the High Court
having entertained the writ petition in
which pleadings were also complete,
ought to have decided the case on merits
instead of relegating the parties to a civil
suit. Relevant portion of the judgment of
the Supreme Court in this regard, reads as
follows:-

"2. By the impugned order the writ
petition, which was pending for a long
period of thirteen years, has been
summarily dismissed on the ground that
there is remedy of civil suit. The dispute
between the parties was concerning
exercise of the respondents' alleged right
of re-entry on the disputed property in
accordance with sub-rules (2) and (3) of
Rule
5
of
the
Land
Acquisition
(Companies) Rules, 1963. The aforesaid
Rules
contain
a
mechanism
for
adjudication of a dispute relating to the
alleged breach of terms of the agreement
and the manner in which it is to be
resolved.
3.
The
High
Court,
having
entertained the writ petition, in which
pleadings were also complete, ought to
have decided the case on merits instead of
relegating the parties to a civil suit.
4. We, therefore, set aside the
impugned order of the High Court and
remit the matter to it for taking a decision
on merits, after hearing the parties, within
the earliest possible period." (Underlining
ours).

11. A Division Bench of this Court
had also the occasion to consider this
question in the case of Diwakar Dutt
Bhatt Vs. Life Insurance Corporation of
India & Anr., (1998) 2 UPLBEC 1154, in
which it has been held that the bar of
alternative remedy is nothing but a matter
of self-imposed discipline and in a case in
which the petition was entertained and
pleadings have been exchanged, it would
be inexpedient to dismiss the writ petition
on the ground of alternative remedy.
3 All] Roshan Lal V. State of U.P. and others
843
Paragraph 12 of the judgment, which is
relevant for the purpose, reads as
follows:-

"12. As far as the first ground is
concerned the writ-petition was filed on
29.10.1997. The petition was entertained
and the respondents were directed to file
the
counter-affidavit.
The
counter
affidavit has been filed. The rejoinder
affidavit has also been filed. The case was
heard today. No doubt the administrative
instructions provide for filing of an appeal
but the question which remains to be
decided is, as to whether, on the ground of
availability of an alternative remedy the
writ-petition, which has been entertained
can be thrown out and the petitioner be
relegated to the appellate authority. The
bar of the alternative remedy is nothing
but a matter of self-imposed discipline
which the Courts have imposed upon
themselves for the reason that the
jurisdiction
of
Article
226
of
the
Constitution of India, should be invoked
after exhausting the alternative remedies
available to an aggrieved person."

12. This question also fell for
consideration before a learned Single
Judge of this Court in the case of Indra
Narain Tripathi Vs. Union of India &
Ors., (2006) 1 UPLBEC 1012, in which it
has been held that after exchange of
pleadings and four years of presentation
of the writ petition, it would not be
appropriate to throw out the petition on
the
ground
of
alternative
remedy.
Relevant portion of the said judgment
reads as follows:-

"3.
Learned
Counsel
for
the
respondent has raised a preliminary
objection that a statutory revision lies
against the impugned orders and in fact
the petitioner has alleged that he had
preferred the revision on 24.5.2001,
therefore, the petition is not maintainable.
The respondents in their counter affidavit
have denied that any memo of revision
was received by the Competent Authority.
The appeal of the petitioner was decided
after about a decade of the removal order.
This petition has remained pending for the
last about 4 years and pleadings have
been exchanged between the parties.
Thus, on these facts it would not be
appropriate to throw out the petition on
the ground of alternative remedy."

13. Same view has been taken by
this Court in the case of Lokman Singh
Vs.
Deputy
General
Manager
U.P.S.R.T.C. Meerut & Ors., 2006 (8)
ADJ 646, in which dismissal of the writ
petition after exchange of pleadings after
long distance of time on the ground of
alternative remedy under the Industrial
Disputes
Act,
was
found
to
be
unsustainable.
Paragraph
4
of
the
judgment, which is relevant for the
purpose, reads as follows:-

"4. No doubt, the petitioner has a
remedy of raising a dispute under the U.P.
Industrial Disputes Act. However, since
the petition was entertained in the year
1997 and counter and rejoinder affidavits
have been exchanged, it would not be
proper for the Court to relegate the
petitioner to an alternative remedy under
the Industrial Disputes Act at this stage,
and that too, after a period of almost 10
years. Consequently, the preliminary
objection made by the learned Counsel for
the respondents is rejected."

14. Bearing in mind the aforesaid
principle, when we consider the facts of
the case, we are of the opinion that the
844 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
learned Judge, after having entertained the
writ petition, directed the parties to file
counter and rejoinder affidavits and that
having already been done, at such a
distance of time, ought not to have
dismissed the writ petition on the ground
of alternative remedy.

15. We hasten to add that after
exchange of pleadings, the Court may not
be in a position to decide the disputed
question of fact, for the reason that for
deciding the same, evidence may be
required to be laid, and in such
circumstance the writ petition cannot be
dismissed on the ground of alternative
remedy but on the ground that the issue of
fact cannot be decided in a writ petition.

16. When we test the order of the
learned Judge from the aforesaid angle,
we are of the opinion that the order cannot
be be sustained in the eyes of law.

17.

Accordingly,
the
appeal
succeeds and is allowed. The order dated
24.07.2009 passed in Civil Misc. Writ
Petition No. 39776 of 2001 is set aside
and the matter is remitted back to the
learned Judge for reconsideration on
merits in accordance with law.

18. In the facts and circumstances of
the case, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2009

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE ASHOK SRIVASTAVA, J.

Civil Misc. Writ Petition No. 50096 of 2009

V.C. Mishra, Senior Advocate President,
High Court Bar Association, Allahabad
and another

 ...Petitioners
Versus
The Bar Council of U.P. and another

 ...Respondents

Counsel for the Petitioners:
Sri T.P. Singh
Sri V.C. Mishra (In Person)
Sri Uma Shanker Mishra

Counsel for the Respondents:

Advocate Act 1961, Section-35-Shaw
Cause Notice-debarring the petitioner
from
practice
for
10
years-without
decision
taken
by
the
disciplinary
authority-No material produced before
the
Court-regarding
decision
of
20.09.09-held-without
decision
of
disciplinary authority-erring officer who
issued show cause Notice-Bar Council to
take legal action against such person.

Held: Para 6

In any event we are of the view that the
proceeding which wanted to be initiated
or initiated was not in a proper manner.
The Bar Council of Uttar Pradesh being a
statutory body should be law abiding but
not to act on the basis of personal
animosity with any member of the Bar or
for helping any office bearer of the Bar
Association. Against this background we
are of the view that it is open for the Bar
Council
to
take
any
decision
in
accordance with law under Section 35 of
the Advocates Act, 1961 if at all the Bar
Council of Uttar Pradesh is not satisfied