M/ HIGH CQURT OF JUD ,é F~£» / r r ICATURE CHHATTISGARH: BILASPUn DlwsmN BENCH RK. Vii IPS S/o Late KR Vij, aged about 41’ yeérs, presently posted as Additional Transport Commissioner & Specia! Secretary, Department of Home (Transpcrt) Governmem of Chhattisgarh, Raipur (CG). Respondents Versus. 1) Union of India, through Secretary, Ministry of Home Affairs, New Delhi. 2) State of Madhya Pradesh, through Principe! Secretary, Department of Home, Mantraiaya, Vatiabh Bhawan, Bhopai (MP). 3) State of Chhattisgarh, Through the Principal Secretary, Department of Home, Mantralaya, DK-S Bhawan, Raipur (CG). 4) SP. Pandey, IPS 5) S. ibrahim, IPS 6) AK Dhasmana, IPS 7) Viiay Kumar Singh, tPS 8) Rajendra Kumar, IPS 9) Dr SK Shrivestava, IPS 19) Sanjiv Kumar Singh, IPS 11) Sushovan Banerjee, 1P8 12) Ms. A Shankar, IPS 13‘) PK. Shrivastava, IPS 14) Ravi Kumar Gupta, IPS 15) Raja Babu Singh. IPS 16) K Vaiphei. IPS 17) D.C. Sager, IPS 18) D. Shahid Abrar, IPS Respondents No.4 to 18 through Director General of Police, Madhya Pradesh, Police Head Qtrs, Bhopal (Madhya Pradesh) 19) Vishwaranjan, IPS CGRAM: HON’BLE SHRI SR. NAYAK, CJ & HON’BLE SHRI V.K. SHRIVASTAVA, J. Writ Petition No. 280512003 Petitioner w 2D) OP. Rathore, IFS 21) Praveen Mahendw, IPS 22) Anil M Navaney, IPS 23) Ram Niwas, IPS 24) I‘v’i.W.Ansari, IPS 25) A.N. Upadhyay, IPS 2s} D.M Awasthi, IPS 27) Binay Kumar Singh, IPS 28) Ashok Juneja, IPS 29) Arundeo Gautam, #PS 30) Gurjinder Pal Singh, IPS 31) T.J, Long Kuman IPS 32) Vivekanand, IPS Respondents No.1 9 to 32 through Difectoir Genera! of Poke, Chhattisgarh, Police Head Qtrs, Raipur (CG) Present: Shri Manindra Shrivastava, Sr. Counsei with Shri Akhilesh Daipati, learned counsei for the petitioner. Shri S.K. Beriwai, Centrai Government Counsei for respondent No.1. Shri Sachin Singh Rajput, counsei for respondent No.2IState of MP. Shri Prashant Mishra, Additionai Advocate General with Shri Utkash Verma, Dy. Govt. Advocate for the State of C'nha'ttisgarh. Shri Sameer Sahu and Shri Ashok Vaishnav, counsel for respondent No.1 5. V Shri Bhaskar Payasi, Counsel for respondent No.1 7. $mt.Fouzia Mirza, Counsel for respondents No. 22, 23, 26 & 28. Shri Rajendra Tripathi, Counsel for respondents No.24, 25, 29 and 30. None for other respondents. e ORAL ORDER (Passed on 28E August, 2006) The following oral order of the Court was passed by S.R. NAYAK, C.J. The petitioner belongs to the lndian Poiice Service. Before the formation of the new State of Chhattisgarh, he was ailocated to the 3 .. undivided State of Madhya Pradesh. Aftea' formation of the new State of Chhattisgarh, the petitioner vide orders dated 31/1 0/2000 and 06/1 1/2000 was ailocated to the cadre of Indian Poiice Service in the State of Chhattisgarh. Representations made by the petitioner to retain him in MP. State .went in vain. Feeling aggrieved by the said action of the Government of India, the petitioner fried O.A.No. 2421/2001 before the Central Administrative Tribunal (for short, “the Tribunai"), Principal Bench at New Deihi. When that O.A.No.2421/2001 came up for consideration before the Tribunal, Principal Bench at New Delhi, it is stated that a representation was made before the Tribunal by the Government of lndia that it wouid consider the representations of the petitioner and that of the similarly circumstanced other IPS ofhcers. ln View of this undertaking given by the Government of india, the Tribunai by its order dated 05/02/2002 (Annexure P/3) disposed of O.A.No.2421/2001 directing the Government of india to take a decision on the representations of the petitioner and similarly circumstanced other IPS officers, as early as possible and in any case within a period of three months from the date of receipt of a copy of that order. it appears that the Government of lndia did not take a decision within the time-frame fixed by the Tribunal. However, beiatediy, the Government of lndia vide its order dated 16/06/2005 and 27/06/2005 rejected the ciaim of the petitioner to allocate him to the State of Madhya Pradesh. 2. in the meanwhile, this writ petition was filed on 01/09/2003 for a direction to the Government of lndia to dispose of the petitioner’s representations, as directed by the Tribunai. After the Government of lndia passed the orders against the petitioner on 16/06/2005 and 27/06/2005, the petitioner moved an application l.A.No. 7142/2005 tbr amendment of the writ petition so as to assail the iegaiity of those orders of the Government of india. Opposing that appiication, on behaif of the Government of India, an objection inter alia other objections, was raised by contending that the petitioner without exhausting aiternative remedy before the Tribunal against the orders of the Government of india dated 16106/2005 and 27/06/2005 should not be aiiowed to chaiienge the same directiy before this Court under Articie 226 of the Constitution of india. in support of that contention, the Government of lndia piaced strong reiiance on para §9 of the judgment of the Supreme Court in L. Chandra Kumar Vs. Union of india1. 3. On the other hand, on behaif of the petitioner, it was contended that inasmuch as the petitioner has had on an earlier occasion filed O.A.No.2421/2001 before the Tribunal and the Government of lndia did not correct itself and again passed adverse orders against the petitioner, this Court could review the vaiidity of those orders. in support of that contention, the petitioner placed reliance on the judgment of the Supreme Court in T.K. Rangarajan Vs. Government of Tamiinadu and othersz. ln the premise of these contentions, the Court was catled upon to consider the sole question whether the amendment sought by the petitioner shouid be allowed or not. This Court by its order dated 09i08/20a5 atlowed the application for amendment. 4. Having heard Shri Manindra Shrivastava, learned Sr. Counsel for the petitioner, Shri S.K. Beriwal, teamed counsel for Union of india and learned State counsel for the State of Chhattisgarh, we are of the considered opinion that in a matter like this, if the Court were to entertain this writ petition med without exhausting alternative remedy before the Tribunal, it would amount to the Court laying down a bad precedent, which wilt not be healthv or expedient. 1. (1997) 3 scc 261 2. (29cm 6 scc 531 5. As we have said in our recent judgment in the case of DhanesWar Devangan Vs. State of G.G. and othea’sa, at times, it becomes necessary for the Cour: to remind itseif about the seif—imposed restYaints and limitations in exercise of the power granted to the Court by the Constitution under Articie 226. The Court can take judiciai notice of the fact that large number of writ petitions are fiied in this Court by persons without exhausting statutory aiternative remedies or other effective and adequate remedies avaiiabie to them. Articie 226 of the Constitution empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. Such directions, orders or writs may be issued for the enforcement of fundamentai rights or for any other purpose. tt is neediess to state that the remedy provided for in Articte 226 of the Constttution ts a discretionary remedy and the High Court has aiways the discretion to refuse the relief to an appiicant in certain circumstances even though a iegat right might have been infringed. Availabittty of an aiternative remedy is one of such considerations which the High Court may take into account to refuse to exercise its jurisdiction. it is true that the Supreme Court in triohd. Yasin Vs. Town Area Committee" and the cases to foiiow that case heid that an aiternative remedy is not a bar to move a writ petition in the High Court to enforce a fundamentai right. This is the only exception. ln ail other cases where no fundamental right is involved, it has been ruled that the High Court wouid not exercise its jurisdiction under Article 226 where an alternative, adequate and efficacious iegat remedy is avaiiabie and the petitioner has not availed of the same before coming to the High Court. Ofcourse.Article 226 is siient on this point; it does not say 3. 2006 (1) CGLJ 221 4. AIR 1952 SC 115 in so many words anything about this matter, but the Courts have themseives evoived this ruie as a kind of seif -imposed restriction on their jurisdiction under Article 226. The ruie of exhauetion of aiternative remedy before invoking jurisdiction under Articie 226 has been characterized as a ruie of poiicy, convenience and discretion rather than a ruie of iaw. The above ruie has been justified on the ground that persons shouid not be encouraged to circumvent the provisions made by a statute providing for a mechanism and proCedure to challenge administrative or quasi-judicial actions taken thereunder. 6. We do not wish to burden our opinion with reference to the case law. Sufhce it to state that what is stated in the above judgment of this Court, in paras 5 to 10 is quite apposite to be noted in the context of this case also and they read as foliows: “§. in Union of tndia Vs. TR. Varma5, . the Supreme Court observed: “It is well settled‘that when an alternative and equaiiy ett‘icecious remedy is own to e litigant, he shoufd be required to pursue that remedy and not invoke the specie! jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but “the existence of an adequate iege! remedy is a thing to be taken into consideration in the v matter of granting wits... “And when such remedy exists, it Will he a sound exercise of discretion to refuse to interfere in a petition under Article 226, uniess there are good grounds therefor. ” 6. ln Thansingh Vs. Supdt. of Taxesa, the Supreme Court was pleased to observe: "The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof in not subject to any restrictions except the territorial testrictions which are expressiy provided in the Articles. But the exercise of the jurisdiction is discretionary; it is npt exercised mereiy because it is lawful to do so. The very amplitude of the jurisdiction demands’thet it wiii ordinariiy he exercised subject to 5. AIR 1957 SC 8B2 6. AIR 19$4 SC 1M9 certain seif-imposed iimifations4 Resort to that }urisdiction is not intsgded as an alternative ramsdy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Articr'e 226 Where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally enicacious remedy. Again the High Court does not generaliy enter upon a detennination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not, therefone, act as a Court of appeal against the decision of a Court or Tribunal to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an altemative remedy provided by statute for obtaining reiief. Where it is open to the aggrieved petitioner to move another Tribunai, or even itself in anotherjurisdiction for obtaining redress in the manner provided by a statute, the High Coort nbrmally will not permit by ntertaining a petition underArticle 226 of the Constitution the machinery created under the statute to be bypassed, and it wili leave the party applying to it to seek resort to the machinery so set up.” 7. In Assistant Coilector of Central Excise Vs. Dunlop tndia Limited7, the Supreme Court in para 3 observed: "Article 226 is not meant to short-circuit or circumvent statutory procedures. it is only where statutory remedies are entirely iil‘suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constitution. But then the Court must have good and sufticient reason to by—pass the attemative remedy provided by statute. Surely matters involving the revenue where statutory remewes are availabfe are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art.226 of the Constitution are tiled sole/y for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged”. 7. AIR 1985 SC 330 552‘ 8. Further, What could be gafhemd fmm the decisions of fhe Supreme Cour? in U.P.J.N. Vs. Nareshwar, reponed in (1995) 1 SCC 21, T.P.M. Vs. Stafe of On‘ssa, .reporled in AIR 1983 SC 603, H.B. Gandhi Vs. Gopi Nafh and Sons, reporied in 1992 Supp.(2) SCC 312 is that where statutmy remedies are availabie or stafutory Tribune! has been 3e! up, a pefition under Arficle 226 should nof be entertained, uniess fhe sfatutory remedies are iii-suited to meet the demands of any extraordinary situation, for example, Where the very vires of the statute is in question; or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require that recourse may be had to Article 22$; or where the alternative remedy is not effective or adequate; or where the aitemative remedy is onerous or burdensome or inadequate; or where it involves inordinate delay or illusory in nature; where the impugned action is paipably wrong or goes to the root of the jurisdiction or where there is total lack of jurisdiction in the authority. 9. There are certain sound reasons behind this ruie. Remedies by way of judicial review under Article 226 are fundamentally different from the other remedies. instead of suhStituting its own decision for that of some other body, as happens when an appeal is aiiowed, the High court on review under Articie 226 is concerned only with the question whether the Act or order under attack should be allowed to stand or not. it is quite often stressed by the Courts that judicial review is not against a decision under attack but against the decision —making process. in H.B. Gandhi Vs. Gopi Nath and Sons (supra), in para 8, The Supreme Court observed: "Judicial review, it is true, is not directed against the decision but is comined to the decision making process. ,, ‘Judicial review cannot extend to the examination of the correctness or reasonabieness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority atter according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the iaw. Judiciai review is not an appeal from a decision but a review of the manner in which the decision is made. it will be erroneous to think that the Court sits injudgment not only on the correctness of the decision making process but also on the correctness of the decision itseif. ” 10. H.WR Wade in his treatise on Administrative Law (6th Edition)’ at page 36 observes: “The system ofjudicial review is radicaliy din'erent from the system of apmals. When hearing an apnea! the Courfs is concemed wifh fhe merits of the decision under appeal. When subjecl‘ing some administrafive act r order m judiciai review, :hé Cour? is ccncemed with ifs legality, On an appeal the question is “right‘ or wrong?” On review the question is “lawful or unlewfw?” 7. Above a“, it needs to be noticed that in deciding the question whether the parties shouid be permitted to approach this Court straightaway without exhausting aiternative remedies in the context of the present time and place, the Court shouid bear in mind the undeniabie fact that there are certain areas of jurisdiction which this Court atone can exercise and no other Court or judiciai or'quasi-judicial forum. There is aiarming pendency of cases in this Court. This Court is not in a position to hear and dispose of large number of very oid such cases and the litigant pubiic knocking at the doors of this Court for justice helplessiy for years and decades. if the Court finds that the writ appticant has alternative, efficacious, adequate remedy before a Tribunal or judicial forum or Civil Court or otherwise, it would not be appropriate for this Court to step in under Article 226 of the Constitution and application of such applicant remedies. imperatives of time and place, we will not he justified in entertaining this writ petition'hled straightaway without exhausting alternative remedy against the impugned orders. % p entertain fried without exhausting aiternative Looking from that angie and taking into account the 8. in the premise of these principles, tet us have a iook at the lis brought before this Court and decide whether the writ appiicant has efficacious, adequate alternative remedy before any Court or Tribunal or judicial forum. Undeniabiy, the Tribunal constituted under the Administrative Tribunal Act, 1985 (for short, “the Act”) has the power and iurisdiction to decide the lis brought before the Court. The lis is simple. The question turns around whether after the formation of new State 0t 10 Madhya Pradesh and the new State cf Chhattisgarh, the petitioner who was serving as an Indian Police Service' Officer in the cadre of the undivided State of Madhya Pradesh shouid be retamed in the new State of Madhya Pradesh or in the new State of Chhattisgarh. Secondly, it is not that the Tribunal has itself committed any ex facie error or wrong in appreciating and deciding the ciaim of the petitioner. As already pointed out supra, on an earlier occasion, the Tribunai, in view of the undertaking given by the Government of India, oniy directed the Government of lndta to correct the mistakes, if any, and to pass appropriate orders on the representations made by the petitioner and simiiarly circumstanced other IP3 Ofhcers to retain them in the newly formed State of MP. The petitioner without protest and demur and without pursuing any further legal remedies which were availabie made his further representation before the Government of India and onty when the Government of lndia passed adverse order against him and simitarly circumstanced others on 16l06/2005 & 27/06/2005, the petitioner sought to chaiienge the same in this Court directly by tiling an appiication for amendment of the prayer. 9. Whereas the above is the factual matrix of the case, Shri Manindra Shrivastava, with his usual perseverance and vehemence would contend that the Tribunal ought not to have acceded to the request of the Government of lndia; that it itself should have considered the claim of the petitioner on merit. Shri Manindra Shrivastava would aiso try to impress upon the Court that it would be unjust at this distance of time to direct the petitioner to work out iegai remedies before the Tribunai. 10. Per contra, learned Standing Counsel appearing for the Government of tndia and State of Chhattisgarh would contend that there is no warrant for this Gourt to undertake adjudication of the Iis; in the first instance as per the law iaid down by Hon’ble the Supreme Courtimnta V// “i ll 99 of the judgment in the case of L. Chandra Kumar (Supra‘). the petitioner should first exhaust Iegai remedies before the Tribunai and then only he can approach this Court under Articies 2261227 of the Constitution of India. 11. We do not hnd anv substance in the first contention of Shri ‘i Manindra Shrivastava. it needs to be noticed that when the Tnbunal disposed of O.A.No.2421/2001 tiied by the petitioner directing the Government of india to pass appropriate orders on the representation made by the petitioner and simiiarly oircumstanced other IPS officers, the petitioner did not make any protest. Even assuming that such a protest was made before the Tribunal and the Tribunal was caiied upon the Tribunal to decide the matter on merit and the Tribunal declined to do so, the petitioner without loss of time ought to have questioned the correctness of the order of the Tribunal and sought a mandamus from this Court to decide the issue on merit without referring back the issue to the Government of India. As per the order made by the Tribunal, there was no such protest. Secondly, even after the order was made, the petitioner made further representation to the Government of tndia and he was pressing for an order on his representation. There is no necessity for us to consider~whether the orders made by the Government of lndia on 04/04/2005 and 16/06/2005 are valid and justified. Sufhce it to state that these orders are made by the Government of lndia, in pursuance of a direction issued bv the Tribunal on an earlier occasion. The Tribunai has had no occasion to deai with the merit of the aforementioned two orders. it is not as if either the Government of lndia or the Tribunai repeatedly idespite repeated mandamus issued joy this Court with impunity and deliberately passed adverse orders against the petitioner warranting exercise discretion vested in this Court under Article 228 of the Constitution of lndia to permit the petitioner to approach this Court directty 55¢ 12 without exhausting alternative remedy again‘ If the aforementioned two orders are illegal or invalid on any permissible ground, certainly, it is open for the petitioner to work out his legal remedies before the Tribunai. The Tribunal has all the power and jurisdiction to grant relief sought before this Court. We do not find any extraordinary or weighty situation or circumstance which could weigh with us to permit the petitioner to ' a l straightaway approach this Court to assail the correctness and validity of the aforementioned two orders. it is not as if the aforementioned two orders were passed decades back. The impugned orders were passed in the year 2005. We think that the ends of justice would be met by directing the jurisdictional Tribunal to dispose of the Original Application of the petitioner, if tiled, within a time-frame. 12. In the result and for the aforementioned reasons, we dismiss the writ petition, however, reserving liberty to the petitioner to work out his legal remedies before the jurisdictional Tribunal. if the petitioner institutes Originai Application within a period of one month from today, the jurisdictional Tribunal is directed to dispose of the same within a period of six months from the date of institution of such original application without reference to the limitation. All the contentions raised by the respective parties in this writ petition are left open to be agitated before the Tribunal for its consideration and decision-making. in the facts and circumstances of the case, the parties shall bear Raju their respective costs . g . Li l Sdl- 4 , ' I l! V.K.Shrivastava sdl- “ Judge Chief Jusu'ce