In case of Alternative Remedy available, Petition under Article 226 not to be entertained: Delhi High Court

VC 13 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 24th December 2020 RAJNI PARMAR W.P.11149 2020 Petitioner Through: Mr. Yash Mishra with Ms. Nidhi Jaswal Mr. Ruchi Kohli and Mr. Pronoy Chatterjee Advocates DIRECTOR GENERAL ARMED FORCES MEDICAL SERVICES & ORS. Through: Mr. Jivesh Kumar Tiwari Senior panel counsel HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MS. JUSTICE ASHA MENON VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. CM APPL. No.34786 2020 11149 2020 W.P.11149 2020 CM APPL. No.34785 2020The petitioner a Junior Hindi Translator with the respondent No.1 Director General Armed Forces Medical Servicesand being a civilian employee has filed this petition impugning the order dated 17th December 2020 and seeking a direction to the respondents to consider the case of the petitioner on compassionate grounds at the post of Junior Hindi Translator at Respondent no. 3 Armed Forces Medical Store DepotDelhi Cantt. which is stated to be lying vacant. The petitioner being a civilian employee has the remedy of approaching the Central Administrative Tribunaland has in the past in fact approached the CAT and the counsel for the petitioner also does not controvert the same. However his contention is that the petitioner “can always approach the High Court under Article 226 of the Constitution of India”. Undoubtedly so but it is also a settled principle of law that the High Court in exercise of discretion under Article 226 will not entertain a petition under Article 226 when the statutory alternate remedy is available. Reference in this regard may be made to Sudhana Lodh Vs. National Insurance Co. Ltd.3 SCC 524 U.P. State Bridge Corporation Ltd. Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh4 SCC 268 A.P. Foods Vs. S. Samuel 2006) 5 SCC 469 and Bela Rani Bhattacharyya Vs. Union of India213 DLT 111149 2020 6. The petitioner in the present case was issued a Movement Order dated 12th May 2017 asking her to move from Delhi to AFMSD Lucknow. We are aghast that the petitioner has been able to stall her order of transfer movement for the last more than 3 ½ years first by approaching the CAT in OA 1695 2017 which application was eventually withdrawn and thereafter by filing W.P.(C) 5331 2017 and W.P.(C)1304 2018 in this court and thereafter again by filing another miscellaneous application before the CAT. The counsel for the petitioner does not dispute that the job of the petitioner is transferrable. What shocks us is that a transferable employee has been able to by abusing the process of the court stall transfer for so long. The counsel for the petitioner however contends that since there is a vacancy at Delhi the petitioner owing to her family circumstances should be posted against that vacancy. However he again agrees that merely because there is a vacancy there is no right to be appointed at that vacancy. As far as the family circumstances of the petitioner are concerned the same are not found by us to be of such nature which any of the other government employee also desiring to be posted at Delhi would not have. The petitioner cannot claim a right to remain posted at Delhi. The counsel for the petitioner then states that vide the impugned order the petitioner has been asked to join at AFMSD Lucknow and that her representation for being posted against the vacancy would be considered thereafter. He contends that the W.P.11149 2020 petitioner will join at AFMSD Lucknow but a direction for decision on her representation in a time bound manner be granted. However when we asked the counsel for the petitioner whether the petitioner is willing to give an undertaking to this court that she will join at AFMSD Lucknow it is conveniently said that the counsel has no instructions. In the circumstances since there is no certainty of the petitioner still joining at AFMSD Lucknow the question of issuing any direction for time bound decision of the representation after the petitioner has joined at AFMSD Lucknow also cannot be given. The petition is found to be in abuse of the process of the At this stage the counsel for the petitioner states that the petitioner is willing to join at AFMSD Lucknow within two weeks of the transfer order being issued. He states that the transfer order has not been issued till now and without the transfer order the petitioner cannot proceed to Lucknow. The counsel for the respondents after taking telephonic instructions states that the transfer order has already been issued. The counsel for the petitioner states that on the basis of the said statement the petitioner will join at AFMSD Lucknow on or before 30th December 2020. The undertaking of the petitioner that she will on or before 30th December 2020 join at AFMSD Lucknow is accepted and the W.P.11149 2020 petitioner through counsel is made aware of the consequences of breach of undertaking given to the Court. Subject to the petitioner complying with the undertaking and performing her duties at AFMSD Lucknow the writ petition be treated as a representation of the petitioner for being transferred from AFMSD Lucknow to a unit in Delhi and the said representation be decided on or before 31st March 2021. The petition is disposed of in terms of the above. RAJIV SAHAI ENDLAW ASHA MENON DECEMBER 24 2020 mw W.P.11149 2020 

Summary: The High Court, in exercise of discretion under Article 226, will not entertain a petition under Article 226 when the statutory alternate remedy is available was held by the Delhi High court in case of RAJNI PARMAR V. DIRECTOR GENERAL ARMED FORCES MEDICAL SERVICES &amp; ORS. [W.P. (C) 11149/2020] Facts of the case are, the petitioner, a Junior Hindi Translator with the respondent No.1 Director General Armed Forces Medical Services (DGAFMS), has filed this petition impugning the order dated 17th December, 2020 and seeking a direction to the respondents to consider the case of the petitioner on compassionate grounds at the post of Junior Hindi Translator at Respondent no. 3 Armed Forces Medical Store Depot (AFMSD) Delhi Cantt., which is stated to be lying vacant. Importantly, the petition was found to be in abuse of the process of the Court.  HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW AND HON’BLE MS. JUSTICE ASHA MENON stated that, “What shocks us is that a transferable employee has been able to, by abusing the process of the court, stall transfer for so long. However, the petitioner, being a civilian employee, has the remedy of approaching the Central Administrative Tribunal (‘CAT’) and has in the past in fact approached the CAT. However, his contention is that the petitioner “can always approach the High Court under Article 226 of the Constitution of India” Also, the counsel for the petitioner does not dispute that the job of the petitioner is transferrable. The counsel for the petitioner however contends that since there is a vacancy at Delhi, the petitioner, owing to her family circumstances, should be posted against that vacancy. However, he again agrees that merely because there is a vacancy, there is no right to be appointed at that vacancy. As far as, the family circumstances of the petitioner are concerned, the same are not found by us to be of such nature which any of the other government employee, also desiring to be posted at Delhi, would not have. Nonetheless, the counsel for the petitioner stated that the petitioner is willing to join at AFMSD Lucknow within two weeks of the transfer order being issued. He stated that the transfer order has not been issued till now and without the transfer order, the petitioner cannot proceed to Lucknow. Moreover, the undertaking of the petitioner that she will, on or before 30th December, 2020, join at AFMSD Lucknow, is accepted and the W.P. (C) 11149/2020 Page 5 of 5 petitioner, through counsel, is made aware of the consequences of breach of undertaking given to the Court.