CIVIL WRIT PETITION NO.15166 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 25, 2010 Sunita Devi .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Amar Vivek, Advocate, for the petitioner. **** RANJIT SINGH, J. The primary challenge raised in the petition is to the order of transfer of the petitioner, working as a J.B.T Teacher. The grounds raised, however, are being given a different colour to invoke the policy, duty and the responsibility assigned to the petitioner temporarily for carrying out a census work. The petitioner is a J.B.T. Teacher, for which she was selected in the year 1998. She is posted as a Head Teacher/Incharge at GPS, Dhansoli. With effect from 23.7.2009, she is detailed to perform duties in census operation and is given the task of making votes of the eligible voters in the village. The petitioner CIVIL WRIT PETITION NO.15166 OF 2010 :{ 2 }: complains that she has found many ineligible and bogus voters and that they through the influence of Sarpanch (Respondent No.4) were trying to get the bogus votes made by manipulating, forging and fabricating documents. The petitioner objected to the same. The petitioner states that she had made a detailed complaint alongwith documentary evidence against the bogus votes, which was got filed on account of political influence. Gram Panchayat/Sarpanch of the village then made a absolutely baseless complaint against the petitioner on 17.12.2009. On 17.2.2010, the petitioner filed a detailed representation against her transfer, which was ordered. She also made a complaint to the Additional Director General of Police, Law and Order. The petitioner would make reference to the instructions issued by the Government of Haryana for not transferring officers who were attached for census operation till 31.3.2011. Despite this, on the basis of a complaint, the petitioner has been transferred to Government Primary School, Sonali Khurd on 4.8.2010 and so she is before this Court. The petitioner preferred a civil suit to impugn the transfer order on 10.8.2010 and in response, the respondent-State appeared and pleaded before the Court that the petitioner stood relieved from her duties. The suit was adjourned to 21.9.2010. The petitioner thereafter withdrew the suit on 18.8.2010 and has filed this writ petition on 24.8.2010. The first hurdle that the petitioner was required to cross was for invoking the writ jurisdiction after having exercising alternative remedy of filing a civil suit for the same relief. When confronted with the same, counsel for the petitioner quite forthrightly CIVIL WRIT PETITION NO.15166 OF 2010 :{ 3 }: submits that no effective relief could be granted by the Civil Court, once the petitioner was relieved and when the case was adjourned, she withdrew it to file the petition. The position that was before Civil Court would not change in any manner before the writ Court. If the order of transfer was bad on any count, the Civil Court would have been well within its jurisdiction to interfere in the order, if otherwise permissible under law. The same would be the position before this Court while exercising writ jurisdiction. Accordingly, the ground as advanced by the counsel for the petitioner to justify withdrawal of the suit to invoke the writ jurisdiction is apparently misconceived. It is quite obvious that once the petitioner was not able to get an interim order against the order of transfer, she has chosen to withdraw the suit to file the present writ petition. The petitioner has no valid justification to withdraw the suit and then file writ petition having exercised his option for filing a civil suit at the initial stage. This reason would be enough not to entertain the writ petition on the ground that the petitioner has an equally efficacious alternative remedy, which she had invoke but has now changed track to file the writ petition without much justification. To be fair, the learned counsel has tried to justified the conduct of the petitioner in filing the writ petition. The counsel would refer to Arunima Baruah Vs. Union of India, 2007(6) SCC 120 and Shamrao Chandrappa Kamble Vs. Deputy Engineer (B&C), Panchayat Samiti, 1998 (3) SCT 580. The case of Arunima Baruah (supra), the Hon'ble Supreme Court was only dealing with the aspect of suppression of fact by way of non-disclosure and the extent of effect this would have on a right of a person to access to justice. CIVIL WRIT PETITION NO.15166 OF 2010 :{ 4 }: This is so very clearly noticed in the opening para of the judgment. The question involved in the said case was exercise of writ jurisdiction on the ground that the petitioner therein had suppressed certain facts. Though it is obligatory on the part of the person to disclose fact where civil suit is pending but the Court has observed that the suppression of fact about filing a suit being no longer material, the case may be determined on merits. The observation by the Hon'ble Supreme Court in this case is that the Court's jurisdiction to determine the lis between the parties is to be viewed from the human right concept of access to justice. At the same time, the Court has also noticed that this would not mean that the Courts will have no jurisdiction to deny equitable relief, when the complainant does not approach the Court with pair of clean hands. The Hon'ble Supreme Court went on to observe that it is the extent of denial of such relief, which is a question, as can be noticed from the following observations:- “It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would dis-entitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise CIVIL WRIT PETITION NO.15166 OF 2010 :{ 5 }: its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.” It is not as much a question of suppression of fact in this case but it is a question of exercise of writ jurisdiction when alternative remedy which is available was invoked by the petitioner. The issue is not that the petitioner has suppressed any facts, for which writ filed by her is not being entertained. The petitioner is being asked to answer and explain as to why she should be heard, when she had invoked the alternative jurisdiction by filing a civil suit, which she has withdrawn now to invoke the writ jurisdiction. The doctrine that the Court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter, is also well settled and can not be lost sight off. Reference can be made to the case of Jai Singh Vs. Union of India and others, 1997 (1) SCC 1. In the instant case, the petitioner has withdrawn the suit and, thus, this may not be a case where two parallel remedies are being pursued but the lis filed by the petitioner through a civil suit has not terminated without determination of the lis but has been brought to an end because of the action of the petitioner in withdrawing the suit. It is not a case where the petitioner is being left without a remedy. The order, withdrawing the suit, is also not forthcoming. It is not clear if the petitioner has taken any permission to withdraw the suit to file the present writ petition. The writ Courts have always CIVIL WRIT PETITION NO.15166 OF 2010 :{ 6 }: refrained from acting in those cases where there is an alternative remedy, which has been invoked. The reason of this rule is a public policy where the existence of another parallel jurisdiction in another Court and that Court having been moved, the particular Court being moved insist on bringing its decision. The existence of an alternative remedy may not itself be a ground to refuse exercise of jurisdiction especially on the ground of suppression of facts but this is a well known principle where the Court can in exercise of its discretionary jurisdiction, declined to entertain the writ petition on this ground. The transfer order in the case of Shamarao Chandrappa Kamble (supra), relied upon by counsel for the petitioner, was interfered on the ground that this was used vindictively and maliciously and was based on a complaint of negligence of work, insolence and insubordination, where the person was transferred without enquiry into the allegations so made. The ratio of law in this case would not apply to the facts of the present case. It has to be kept in mind that the transfer as such, is not a punishment. Transfer is an incidence of service. It is an administrative matter, where there is hardly any scope of judicial interference. The limited jurisdiction exercised in such like cases is well determined and the present one is not such a case where any interference is called for. Merely because the petitioner has been detailed for census duty would not be a ground not to transfer her. Accordingly, I am not inclined to exercise writ jurisdiction. The writ petition is accordingly dismissed. August 25, 2010 ( RANJIT SINGH ) khurmi JUDGE