BHANWAR LAL Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) ALL these 16 cases involve a common question of law and the facts involved are almost similar, therefore, they are being disposed by a common order. Out of these 16 petitioners, nine petitioners, namely, Prabhu Singh, Mangla Ram, Hanuman Ram, Satya Narain, Ramesh Chandra, Suresh Kumar, Shanker Lal, Hari Singh and Sohan Lal are Naka Guards; two petitioners, namely, Bhanwar Lal and Rajendra Singh are Nakedar, four petitioners, namely, Arun Kumar, Ranjeet Singh, Vimal Kumar and Mohd. Asad are sub -Nakedar and one that is Mohd. Jahid is Gajdar, who were under the employment of the Municipal Board, Nagaur. All of them had been employed before 31 -12 -1984. However, their services have been terminated by a notice dated 26 -8 -1986 with effect from 26 -9 -1986 on the ground that there had been a reduction of the posts and that the initial appointment of each of the petitioners was irregular. All these notices are said to have been offered to the petitioners respectively but each one of them is said to have refused and, therefore, they were dispatched by registered post on 26 -8 -1986. The learned Counsel for the petitioners has challenged the termination of the services of all these petitioners except the petitioner Mohd. Jahid, Gajdar on the grounds that compliance with Rule 8 of the Rajasthan Municipal (Subordinate and Ministerial Services) Rules, 1963 (here in after referred to as 'the Rules') has not been made, that although the services of the petitioners had been thus terminated, persons similarly situated and even junior to the petitioners in their respective rank had been retained in service and thus an improper discrimination had been made between persons similarly situated and the principles enshrined in Articles 14 and 16 of the Constitution have thus been violated, that the services have been terminated without complying with the provisions of Section 25F(2) of the Industrial Disputes Act and that even after the termination of the services of the petitioners they should have been absorbed according to order No. F. 18 (A) integration DLB 217 -494 dated 8 -4 -1986 issued by the Government of Rajasthan. So as the remaining petitioners are concerned only the last two contentions have been urged.

(2.) THESE petitions have been contested by the Municipal Board. In the first place a preliminary objection has been raised that the petitioners have not exhausted their alternative remedy by way of a revision under Section 300 of the Rajasthan Municipalities Act (here in after referred to as 'the Act') which was a efficacious remedy and, therefore, the petitioner cannot invoke the extra ordinary jurisdiction under Article 226 of the Constitution. On merits the learned Counsel for the respondent Municipal Board supported the orders of termination, mainly on the grounds that as a matter of fact, the initial appointment of each of the petitioners was not in accordance with the Rules. They were appointed against the sanctioned strength that is the starling pattern, without budget provisions and appointments were made by the Chairman and not by the Board. It was also urged that continuing these persons so illegally and irregularly appointed, would cast an unnecessary heavy burden on the Municipal Board and it is not expected that the local body should be burdened like this.

(3.) SO far as the preliminary objection regarding the alternative remedy under Section 300 of the Act goes, the learned Counsel for respondent -Municipal Board has urged that when the statute provides for remedy which is efficacious the party concerned has to exhaust that remedy before approaching this Court under Article 226 of the Constitution and in support of his contention he has placed reliance upon a number of decision of this Court, namely, SB. Civil Writ Petition No. 1856/81 -Banshidhar v. Municipal Board, Jodbpur decided on 24 -11 -80, S.B. Civil Writ Petition No. 2581 Madan Lal v. Municipal Board, Jodhpur S.B Civil Writ Petition No. 964/86. Kamla v. Municipal Board. Jodhpur decided on 19 -5 -86 S.B. C.W.P. No. 831/86 Jahur Khan v. Munipal Board, Jodhpur decided on 12 -5 -86 and Girdhari v. Regional Transport Authority Bikaner and Ors. 1970 WLN 721, Champa Lal v. The State of Rajasthan and Ors. . On the other hand, the learned Counsel for the petitioner has urged that the remedy under Section 300 of the Act is not a remedy available to the petitioner as a matter of right but is lies within the discretion of the authorities concerned to entertain the revision or not and in any case as the order of termination is challenged on the ground of violation of Articles 14 and 16 of the Constitution, the existence of an alternative remedy is no bar to the writ petition being entertained. He placed reliance upon V. Vellaswamy v. Inspector General of Police and Anr. : AIR1982SC82 , Collector of Customs and Excise, Cochin and Ors. v. M/s A.S. Bam : 1973ECR18(SC) , and B.K. Sharma v. State of Rajasthan and Ors. ILR (1979) 2 Raj. 515 so far as the first contention is concerned and The Government of India and Ors. v. The National Tabocco Co. of India Ltd. : AIR1977AP250 and some other authorities also. In rejoinder, Mr. Singhvi urged that even if the ground of violation of Articles 14 and 16 is raised the bar of alternative remedy may still apply as had been held in Sita Ram v. State of Rajasthan and Ors. 1984 RLR 1041. He also placed reliance upon Jagadeesan v. Ayya Nadar Janki Ammal College and Anr. : (1983)IILLJ190SC and urged that when the High Court had entertained a writ petition and allowed it, the Hon'ble Supreme Court set aside that order on the ground that an alternative remedy was available to the petitioner and, therefore, the High Court should not have interfered. A careful perusal of all these authorities leads me to the conclusion that ordinarily when an alternative remedy is available to a petitioner he should not be allowed to invoke the extra ordinary jurisdiction of the High Court under Article 226 of the Constitution but it is not an inflexible rule and in cases where the court comes to the conclusion that the order challenged is patently illegal and also violates the principles enshrined in the Constitution, it may entertain a writ petition and may not enquire the petitioner to first exhaust the alternative remedy available to him. In the present case, as I will presently show, there has been a flagrant violation of Section 25F of the Industrial Disputes Act and also discrimination has been made improperly between persons similarly situated, I am of the opinion that the alternative remedy even if available to the petitioner need not be a ground for refusing relief by this Court, specially when the matter had already been admitted after a show cause notice and arguments on merits have also been heard by this Court. Out of these authorities referred to above, the learned Counsel for respondent -Municipal Board laid great stress on Sita Ram v. The State of Rajasthan and Ors. (1) 84 RLR 1041) and urged that although the question of discrimination involving infringement of Articles 14 and 16 was also there and still the learned Judge was of the opinion that on that ground alone, the High Court need not entertain the writ petition. I have carefully gone through the facts of the case and observations made by the learned single Judge. It may at once be stated that in that case the question of implementation of the pay scales was involved and it was alleged that Articles 14 and 16 have also been infringed. In that respect the learned single Judge observed 'However, since the question is only of implementation and grievance is against either non -implementation or wrong implementation, the petitioner can in either case challenge the order passed against him, successfully before the Tribunal, if a proper case is made out. The fact that Articles 14 and 16 are violated can further strengthen his case for implementation or wrong implementation. But that alone cannot take out the service matter from the jurisdiction of the Appellate Tribunal.' The observation, is to be read in the context of the facts in which they have been made. It would be clear that it was not a case of flagrant dis -regard of a clear provision of law and the matter did require scrutiny. This case is, therefore, clearly distinguishable.