Ashok Kumar vs State of U.P.and Others

Binod Kumar Roy, J.—The petitioner, a processserver of the Civil Court, Mainpuri prays to quash an order dated 1251995 passed by the District Judge, Mainpuri terminating his services.

Sri S. F. A. Naqvi, the learned counsel appearing on behalf of the petitioner, contended inter alia that since the petitioner was no longer temporary processserver he was required to be served a notice prior to termination of his services and that not having been done the impugned order is liable to be quashed for this legal infirmity alone. Learned counsel further contended that the impugned order was passed mala fide as the petitioner had refused to oblige the District Judge concerned.

Learned Standing Counsel appearing on behalf of Respondent No. 2 contended that the statement made in paragraph 17 of the writ petition that the petitioner bad given a representation on 7th June, 1995 is incorrect inasmuch as in fact the petitioner has preferred a statutory appeal under Rule 7 of the Rules which, however, is still pending and not decided. Learned Standing Counsel further contended that since the petitioner has preferred a statutory appeal this writ petition is not maintainable and is liable to be dismissed on this short ground alone. He further contends that whatever grounds the petitioner have taken in this writ petition the same will be duly considered on the administrative side by this Court.

In M. B. R. D. A., Bombay v. Gokak Patel Volkart Ltd., 1995 (1) JT (SC) 155, when a contention was raised about the maintainability of the writ petition on the grounds of existence of a statutory alternative remedy, it was held as follows :�

"The contention of the appellant in this appeal is that in the first place the writ petition should not have been entertained. The writ petitioner had an adequate alternative statutory remedy. The writ petitioner had in fact already taken advantage of alternative remedy provided by the Statute and had preferred an appeal against the judgment of the Tribunal. While the said appeal was pending the writ petitioner invoked the writ jurisdiction of the Bombay High Court praying more or less the same remedy as was prayed in the appeal.

"We are of the view that the point taken by the appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ petitioner actually had availed of that remedy. The writ petitioner''s appeal before the Statutory Authority was pending. In that view, of the matter this writ petition should not have been entertained."

Following the ratio laid down by the Apex Court, extracted as above, I also hold that since the petitioner had actually availed the statutory remedy, namely, the appeal under Rule 7 of the Rules, this writ petition is not fit to be entertained. Accordingly this writ petition is dismissed.

The apprehension of the petitioner that the points raised in his appeal will not be considered in his presence which is expected while adjudicating his writ petition, is of no substance.