Sangeeta Devi vs State and others

Through the medium of this petition, the petitioner is seeking quashment of select list published in a daily newspaper in its issue dated

26.08.2011 and also Order No. CDPO/G/2010-11/520-24 dated 05-09-2011 issued by Child Development Project Officer, respondent No. 3

herein, whereby Anita Devi, respondent No.5 herein, has been appointed against the post of Anganwari Helper in Mohalla Mathur.

The facts-in-brief, as projected in the writ petition, are that in the year 2010 respondent No.3 issued Advertisement Notice for filling up various

posts of Helpers in different villages/mohallas/hamlets including Mohalla Mathur, where the petitioner is residing since long. It is averred that

amongst others, the petitioner being fully eligible also applied for the post of Anganwari Helper for Mohalla Mathur, where the Anganwari Centre

is situated. Further, it is averred that when the select list came to be issued, instead of petitioner, respondent No.5 came to be selected despite the

fact that she was not the resident of Mohalla Mathur, rather she was residing in Mohalla Proach. It is averred that the petitioner also made a

representation to respondent No.3 bringing to his notice the factual position, however, respondent No.3 did not pay any heed towards the

representation of petitioner and issued the impugned order, dated 05.09.2011 appointing respondent No.5 as Anganwari Helper for Anganwari

Centre Mandhera, Mohalla Mathur. Hence, the present writ petition.

Learned counsel appearing for petitioner contended that the posts of Anganwari Workers were to be filled up mohalla-wise basis. Since the

post-in-question, against which the petitioner has applied, was meant for Mohalla Mathur therefore, petitioner ought to have been appointed

against the said post being the resident of said mohalla, whereas respondent No.5, who has been appointed against the said post, was actually the

resident of Mohalla Proach.

However, Mr. Bhasin, learned counsel for respondent No.5 contended that in terms of Government Order No.07-SW of 2010 dated

18.01.2010, before approaching this Court, the petitioner had to exhaust the remedy of appeal as well as revision.

I have gone through the said order. It would be appropriate to reproduce relevant portion of the said order hereunder:

''Appeal:

''Wherever anybody feels aggrieved with the selection of Anganwadi Worker/Helper or with the mode and manner of selection of the Hamlet for

setting up of Anganwadi Centre, an appeal shall be preferred to the Deputy Commissioner concerned within 30 days from the date of selection of

Anganwadi Worker/Helper or the date of identification of location of the Hamlet for the setting up of Anganwadi Centre.

The Deputy Commissioner concerned shall dispose of the appeal within 15 days from the date of the receipt of the complaint after conducting an

enquiry whatever may be deemed necessary.

Revision:

In case where the order made in the appeal does not satisfy the aggrieved person(s), a revision shall lie with the Divisional Commissioner

concerned within 15 days from the date of passing of the order by the Deputy Commissioner concerned.

Divisional Commissioner concerned shall pass an order within one month from the date of receipt of the revision petition. The order of the

Divisional Commissioner concerned in this matter, however, shall be final.''

Thus, it seems, in terms of the said order, the petitioner had efficacious alternative remedy available; however, she without availing the same has

filed the present petition.

The Supreme Court in Board of Wakf, West Bengal v. Anis Fatma Begum and Anr., 2010 (7) Supreme 1059 : (AIR 2011 SC (Civ) 113) has

held that the parties have to necessarily avail remedy of approaching Wakf Tribunal and not civil court or High Court under Article 226 of the

Constitution of India. A question arose in Bihar State Electricity Board and another v. Ramdeo Prasad Singh and others, AIR 2011 SC 3423, as

to whether a workman as defined in the Industrial Disputes Act, can challenge the order of dismissal by filing a suit and pray for his reinstatement,

the Supreme Court held that if a dispute was an industrial dispute relating to enforcement of right or obligation created under the Act, the only

remedy available is to get the same adjudicated under the Act i.e., by raising industrial dispute. In the case the Supreme Court held that the suit

filed by workmen, questioning dismissal and seeking reinstatement, was not maintainable.

Entertaining writ petition in spite of availability of alternative remedy under the Statute by the High Court has not been appreciated by the

Supreme Court. The Supreme Court so held in Transport and Dock Workers Union and others v. Mumbai Port Trust and another, 2011 (2) SCC

575 : (2011 AIR SCW 220) by opining :

''14. In our opinion the writ petition filed by the appellants should have been dismissed by the High Court on the ground of existence of an

alternative remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the discretion should not

ordinarily be exercised if there is an alternative remedy available to the appellant. In this case there was a clear alternative remedy available to the

appellants by raising an industrial dispute and hence we fail to understand why the High Court entertained the writ petition. It seems to us that some

High Courts adopting an over liberal approach are unnecessarily adding to their load of arrears instead of observing judicial discipline in following

settled legal principles.

Again the Supreme Court in Kanaiyalal Lalchand Sachdev and others v. State of Maharashtra and others, 2011 (2) SCC 782 : (2011 AIR

SCW 1194) has held that High Court rightly dismissed the petition on the ground that an efficacious remedy was available to appellants under the

Statute and that it is well settled that ordinarily relief under Articles 226/227 of the Constitution of India, is not available if an efficacious alternative

remedy is available to any aggrieved person. Reference in this regard was also made to decisions in Sadhana Lodh v. National Insurance Co. Ltd.

(2003) 3 SCC 524 : (AIR 2003 SC 1561); Surya Devi Rai v. Ram Chander Rai (2003) 6 SCC 675 : (AIR 2003 SC 3044)]; and SBI v. Allied

Chemical Laboratories (2006) 9 SCC 252.

In GAIL (India) Ltd. v. Gujarat State Petroleum Corporation Ltd. (2014) 2 SCC 329 : (AIR 2014 SC (Supp) 719), the Supreme Court held

that if remedy of arbitration was available, the High Court should not have entertained the writ petition under Article 226 of the Constitution of

India and should have relegated respondent in the said case to avail remedy of arbitration and arbitral tribunal could have decided the complicated

dispute between the parties by availing the services of the experts. Similar views were made by the Supreme Court in Union of India v. Major

General Shri Kant Sharma and another, AIR 2015 SC 2465.

Even a co-ordinate Bench of this Court on similar facts in case, titled as, Santosh Kumari v. State & Ors., SWP No.2409/2012 decided on

09.09.2013, has held that filing of writ by bypassing the remedy available under Government Order No.07-SW of 2010 dated 18.01.2010 cannot

be encouraged.

The remedy of writ under Article 226 of the Constitution is extraordinary and discretionary. The exercise of discretion to issue a writ is a

matter of granting equitable relief. It is a remedy in equity. Ordinarily, if a party does not resort to the remedy provided by law and straightway

approaches the High Court to question the action of authority in disregard of prescribed procedure that stands on a different footing, in such

circumstances writ petition deserves dismissal. These are again the observations of the Supreme Court in Satya Pal Anand v. State of Madhya

Pradesh and others (2016) 10 SCC 767 : (AIR 2016 SC 4995). Be that as it may, when a statutory forum is created by law for redressal of

grievances, a writ petition should not be entertained ignoring the statutory dispensation and the High Court is not to entertain a petition under

Article 226 of the Constitution, if an effective alternative remedy is available to the aggrieved person or the Statute under which the action

complained of has been taken itself contains a mechanism for redressal of grievance.

It is well settled that writ jurisdiction is discretionary jurisdiction and the discretion is not to be ordinarily exercised if there is an alternative

remedy available to the person approaching the High Court with writ petition. In the present case, a clear alternative remedy is available to

petitioner and hence, entertainment of writ petition on hand does not arise at all. This Court cannot adopt an over liberal approach unnecessarily to

add the load of arrears instead of observing judicial discipline in following settled legal principles. Writ petition, for all what has been discussed

herein above, is not maintainable.

In the light of above settled proposition of law as declared by the Supreme Court, and in view of efficacious alternative remedy available to the

petitioner in terms of Government Order No.07-SW of 2010 dated 18.01.2010, the writ petition is dismissed. However, petitioner is at liberty to

avail alternative remedy of filing appeal and the intervening period of delay shall not come in her way, if she chooses to approach before the

appropriate forum. Interim direction, if any, shall stand vacated. Miscellaneous petition(s), accordingly, stands disposed of.