JUDGMENT 1. - This appeal is directed against the judgment dated 20.9.1995 passed by the learned Single Judge, by which the learned Single Judge dismissed the writ petition filed by the petitioner on the ground that the petitioner has an alternative and efficacious remedy available to him to approach the Service Tribunal by way of filing an appeal. 2. Appellant (writ petitioner) Sohan Singh vide order dated 23.5.1973, was temporarily appointed as a Mines Guard in the Office of the Director of Mines and Geology. He was confirmed on this post with effect from 1.4.1976 vide order dated 28.10.1985. Respondent No. 3 Kanhaiya Lai Solanki joined as a Forest Guard on 7.5.1971 in pursuance to the appointment order dated 1.5.1971 issued by the Divisional Forest Officer. He was promoted, on adhoc basis, as the Assistant Forester on 10.5.1971. After the closure of the Famine Work, he was reverted to the post of Forest Guard on 1.8.73. Thereafter his services were transferred from the Forest Department to the Mines Department and he joined the duties as a Mines Guard on 7.9.1973. Vide order dated 4.7.1977 he was confirmed on s he post of Mines Guard. In the year 1978 he was promoted as a Lower Division Clerk in the Mines Department. The petitioner, though he was also working as the Mines Guard in the Mines Department and according to him he was senior to the respondent No. 3 but he was not accorded promotion on the post of Lower Division Clerk while Shri Kanhaiya Lai Solanki (respondent No. 3) was promoted as the Lower Division Clerk. He made the first representation on 21.8.1978 but that representation was neither considered nor replied to. He, thereafter, made various representations and the last representation made by the petitioner was dated 22.5.1987. Since his request made in the representations to give him promotion was not acceded to, he, therefore, filed the writ petition in the year 1987 with the prayer that the respondents may be directed so enforce rule 9 of the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957, determine the vacancies year-wise and accord promotion to the employees in accordance with law after determining the vacancies on and from 1978 and to accord promotion to 10% and/or 121/2 per cent promotion quota reserved for Class IV employees. 3. 3. The writ petition was contested by the respondents and it was stated in the reply that the respondent No. 3 (Kanhaiya Lai Solanki) joined the Forest Service in the year-1971 and from where he was transferred to the Mining Department as a Mines Guard and he was senior to the petitioner and was confirmed on the post of Mines Guard in the year 1976 and thereafter he was promoted to the post of Lower Division Clerk in the year 1978 prior to the publication of the Provisional Seniority List. It was, also, stated in the reply that respondent No. 3 Kanhaiya Lai Solanki was promoted in the year 1978 and the writ petition was filed in the year 1987. Certain other grounds were, also, taken in the reply for the dismissal of the writ petition. 4. The petitioner, also, filed rejoinder to the reply filed on behalf of the respondents No. 1 and 2, and the respondent No. 3. Thereafter the writ petition was listed for hearing on various dates but could not be heard and ultimately it was decided by the learned Single Judge by His Judgment dated 20.9.1995. 5. Learned Single Judge non-suited the petitioner-appellant on the ground of availability of the alternative remedy. The key questions for adjudication in the present appeal before us are (i) where the existence of an alternative remedy is a bar to the grant of relief under Article 226 of the Constitution of India when no disputed questions of fact are involved in the writ petition and there is an infringement of the legal rights of the petitioner; and (ii) whether the writ petition can be thrown away on this technical ground after eight years of its admission? 6. Article 226 of the Constitution of India is couched in very wide term and the exercise of these discretionary powers vested in the High Court are not subject to any restriction except that of the territorial jurisdiction. The existence of the efficacious and adequate remedy, whether statutory or otherwise, though does not bar, curtail or impinge upon the jurisdiction of the High Court but that is a circumstance which has to be considered in the matter while granting the relief. The existence of the efficacious and adequate remedy, whether statutory or otherwise, though does not bar, curtail or impinge upon the jurisdiction of the High Court but that is a circumstance which has to be considered in the matter while granting the relief. It is a salutary rule of practise which should not be forgotten that the extraordinary remedy should not be treated as a substitute for the ordinary remedy provided under the Act or the Rules. Article 226 of the Constitution of India is not meant to circumvent the statutory procedure provided under the Rules. The mere existence of the adequate alternative remedy cannot per se be a ground to throw away the petition if: (i) there is a violation or infringement of the fundamental right; or (ii) there is a complete lack of jurisdiction; or (iii) the order has been passed in violation of the principles of natural justice; or (iv) there is an error apparent on the face of the record and is plainly discernible without requiring the probe into the matter; or (v) the questions raised are basically constitutional and are of public importance; or (vi) the manifest injustice has been resulted - from the facts and circumstances of the case.But the existence of the alternative remedy is not an absolute bar for the exercise of the jurisdiction under Article 226. It is only the suitable, adequate and equally efficacious remedy which may operate as a bar for the exercise of the jurisdiction but not a remedy which is illusory and empty formality. Resort to the jurisdiction under Article 226 should not be taken as a substitute to the ordinary remedies provided under the Act or the Rules and the powers should not be exercised merely because it is lawful also, unless some exceptional case is made-out. 7. In : K. S. Rashid and Sons v. Income Tax Investigation Commission, AIR 1954 SC 207 the Supreme Court held that "the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate and suitable remedy elsewhere." 8. In Himmat Lai Hari Lai Mehta v. State of Madhya Pradesh, AIR 1954 SC 403 the Supreme Court held that "the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available, does not apply where a party has come to the Court with an allegation that his fundamental rights have been infringed and sought relief under Article 226. Moreover, since the remedy provided by the C.P. and Berar Sales Tax Act is of onerous and burdensome character and before the assessee can avail of it he has to deposit the whole amount of tax, such a provision can hardly he described as an adequate alternative remedy." 9. In : Union of India v. T. R. Verma, AIR 1957 SC 882 the Constitutional Bench of the Supreme Court held that "it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special 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 legal remedy is a thing to be taken into consideration in the matter of granting the writs. And where such remedy exists it would be sound exercise of the discretion to refuse to interfere in the right of the petitioner under Article 226 unless there are good grounds therefor." 10. In : A. V. Venkateswaran, Collector of Customs, Bombay v. Ram Chand Sobh Raj Wadhwani, AIR 1991 SC 1506 it has been held by the Supreme Court that (para 9):- "The rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion." 11. In : Than Singh Nath Mai v. Superintendent of Tax, Dhubri, AIR 1964 SC 1419 it was held by the Supreme Court that "the very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. In : Than Singh Nath Mai v. Superintendent of Tax, Dhubri, AIR 1964 SC 1419 it was held by the Supreme Court that "the very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other modes prescribed by the statute. Ordinarily the Court will not entertain a petition for a writ under Article 226 where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficatious remedy." 12. In : M/s. Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, now Zila Parishad, Muzaffarnagar, AIR 1969 SC 556 the Supreme Court observed that "it is true that the existence of the statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion or statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law and the Court may, therefore, in exceptional cases, issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedy has not been exhausted." 13. In : Ghan Shyam Das Gupta v. Annant Kumar Sinha (1991) 4 JT (SC) 43 : ( AIR 1991 SC 2251 ) it has been held by the Supreme Court that "the remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a Civil Court or to deny defences legitimately open in such action." 14. In : State of Uttar Pradesh v. Labh Chand, 1994 Lab IC 746 it has been held by the Supreme Court that "when a statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of the persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining the petitions under Article 226 of the Constitution, is a legal position which is too well settled." 15. In : Gopi Lal Teli v. State of Rajasthan. 1995 (1) Raj LW 1 : (1995 Lab IC 1105) the Full Bench of this Court held (para 39 of Lab IC):- "That for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice, the normal course is to pursue the remedy provided under the Act anti exercise of the powers under Article 226 of the Constitution of India in such cases should be sparingly exercised." 16. In : Deepak Kumar Khivasara v. Oil India and others (D. B. Civil Special Appeal (Writ) No. 790 of 1995 - decided on 17.4.1995) the Division Bench of this Court held that "the alternative remedy is no bar when an exceptional case is made-out and the High Court can entertain the matter under Article 226." The Division Bench further observed that "the fact of the present case, however, makes out one of the sparing exceptions." The Division Bench, therefore, set aside the order passed by the learned Single Judge and remanded the case to the learned Single Judge to hear out the writ petition on merit after the contest being made. 17. In : Rameshwar Lal v. Municipal Council, Tonk and others (D. B. Civil Special Appeal No. 218 of 1996 - decided on 6.5.1996) another Division Bench of this Court, to which one of us (Hon'ble Mr, Justice B. R. Arora) was a Member, agreed with the proposition of law laid down by the Supreme Court and by the Full Bench of this Court that the alternative remedy is no bar when an exceptional case is made out and the High Court can interfere in the matter Article 226. But on facts the Division Bench came to the conclusion that no exceptional case has been made-out and, therefore, it refused to interfere in the order passed by the learned single Judge. But on facts the Division Bench came to the conclusion that no exceptional case has been made-out and, therefore, it refused to interfere in the order passed by the learned single Judge. 18. Learned counsel for the parties have relied upon certain other judgments of the Supreme Court and of this Court on the point in issue. It is not necessary to embellish this judgment with these authorities which have been cited before us, because the question of law discrenible from the judgments referred above and the other judgments on which reliance has been placed, can be summarised as under.The remedy provided under Article 226 of the Constitution of India is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party has an adequate, efficacious and suitable remedy available elsewhere, The mere existence of an adequate remedy or legal remedy cannot be, per se, a ground for throwing the petition if; (i) there is a violation or infringement of the fundamental right; or (ii) there is a complete lack of jurisdiction; or (iii) the order has been passed in violation of the principles of natural justice; or (iv) there is an error apparent on the face of the record and is plainly discernible without requiring the probe into the matter; or (v) the questions raised are basically constitutional and are of public importance; or (vi) the manifest injustice has been resulted from the frets and circumstances of the case. This rule of exhaustion of statutory remedy before issuance of the writ is a rule of self-imposed limitations and is a rule of discretion and Policy and not a rule law. It is only in exceptional cases where there is a manifest injustice resulting from the jurisdictional error or error apparent on the face of the record or there is a violation of the fundamental right or there is a material legal infirmity discemable without requiring the probe into the conflicting facts and the alternative remedy is not effective or adequate, that a relief under this Article can be granted. Normally, if a remedy is provided to approach the another Tribunal by way of filing an appeal, the High Court is not expected to entertain the writ to bypass the machinery created under the statute. Normally, if a remedy is provided to approach the another Tribunal by way of filing an appeal, the High Court is not expected to entertain the writ to bypass the machinery created under the statute. In such matters where the statutory Forum or Tribunal is specifically created by a statute for the redressal of the specified grieavnces of a person then in such matters the Court should leave the party applying to that particular Forum to seek resort to the machinery so set-up in the statute unless an exceptional case for interference is made-out. 19. Now, we have to see: whether the case in hand is one of the exceptional cases in which the discretion can be exercised? The grievance of the appellant is that in the year 1978 respondent No. 3 Kanhaiya Lai Solanki was promoted to the post of Lower Division Clerk while his case was not considered and he should be given promotion to the post of Lower Division Clerk after applying rule 9 of the Rules after determining the year-wise vacancies. The cause of action accrued to him in the year 1978 but he filed the writ petition in the year 1987. He had an alternative and efficacious remedy available to him to approach the State Appellate Tribunal by way of filing an appeal. The remedy provided under the Act Rules cannot be said to be onerous, illusory or an empty formality. All these questions, which the appellant warns to agitate before us, can be agitated before the Tribunal. No exceptional case for exercise of the discretion under Article 226 of the Constitution of India is, therefore, made-out. 20. The next ground on which the order has been assailed is that when once the writ petition was admitted in the year 1987, it should not have been dismissed merely on the ground of availability of the alternative remedy and after a lapse of about eight years the question of limitation will, now, come in the way of the appellant and the appellant will not be able to get any relief from the Tribunal. 21. 21. In : B. K. Sharma v. State of Rajasthan, ILR (1979) 29 Raj 515 the single Bench of this Court held that "when once the writ petition is entertained and heard on merit, the Court should not easily reject it on the ground of latches and delay or on the ground of availability of the alternative remedy."In that case, the matter was heard on merits while it is not the case here. The remedy available with the petitioner in that case was only that of the review. Review is not an efficacious alternative remedy. While in the present case, the remedy provided under the Act is of an appeal before the Service Tribunal. In the appeal, the Tribunal can go into the questions of facts and the questions of law and determine and adjudicate the matter under controversy effectively. The judgment passed by the learned Single Judge in this case is, therefore, clearly distinguishable from the facts of the present case. 22. In : L. Hirday Narain v. Income-Tax Officer, Bareilly, AIR 1971 SC 33 the Writ Petition filed by the petitioner was heard on merit. The Supreme Court, therefore, held that once the petition has been heard on merit, it cannot be rejected on the ground that the statutory alternative remedy was not availed of. In that case the petition was heard on merit and therefore the Supreme Court observed that "when once the writ petition was heard on merit, it cannot be thrown away on the ground that the alternative remedy was not availed of." The present writ petition was not heard on merit and, therefore, this judgment is, also, clearly distinguishable. 23. In : Dr. Bal Krishna Agrawal v. State of Uttar Pradesh (1995) 1 SCC 614 : (1995 Lab IC 1396) the writ petition was admitted by the High Court, remained pending for about five years and after five years the same was dismissed on the ground of availability of the alternative remedy. Since the question raised and involved in that case was purely the question of law, therefore, the Supreme Court set aside the order passed by the High Court and itself looked into the merit of the question regarding the inter se seniority of the appellant qua the respondent and decided the matter. 24. Since the question raised and involved in that case was purely the question of law, therefore, the Supreme Court set aside the order passed by the High Court and itself looked into the merit of the question regarding the inter se seniority of the appellant qua the respondent and decided the matter. 24. Here in the present case the controversy is not purely the question of law but it, also, involves the question of fact that the matter can be effectively adjudicated by the Service Tribunal itself. It is, also, the case of the appellant himself that the Tribunal, on earlier occasion, in a similar matter, decided the similar controversy in favour of the petitioner-appellant. Respondent No. 3 Kanhaiya Lal was promoted in the year 1978. The grievance was raised by the appellant-petitioner in the year 1987, i.e., after the lapse of about nine years. He allowed the time to be passed merely by making representations. The appellant-petitioner disabled himself from availing the statutory remedy for his own fault by not approaching the Tribunal within the prescribed time. He, therefore, cannot be permitted to ask this Court to exercise its discretion in his favour under Article 226 of the Constitution of India. This judgment is, therefore, not applicable to the present case. 25. In : Purshottam Singh v. Union of India, 1980 WLN 321 : (1981 Lab IC 302) a single Bench of this Court observed that "the objection that the petitioner has an alternative remedy under rule 18 of the Rules and the Rules do not survive when the writ petition has already been admitted and heard on merit." 26. In : Rajendra Singh v. Municipal Board, Nagpur, 1991 (5) WLR 21 Raj the learned Single Judge of this Court held that when the writ petition has been heard finally in detail after show cause notice, it cannot be thrown-out on the objection of alternative remedy. 27. In the present case though the writ petition was admitted in the year 1987 but it was not heard on merit. Moreover, the pendency of the writ petition does not give any right to the appellant-petitioner to get the controversy adjudicated unless an exceptional case, as laid down by the Supreme Court, has been made-out for the exercise of the discretionary powers. No exceptional case has been made out by the appellant-petitioner. Moreover, the pendency of the writ petition does not give any right to the appellant-petitioner to get the controversy adjudicated unless an exceptional case, as laid down by the Supreme Court, has been made-out for the exercise of the discretionary powers. No exceptional case has been made out by the appellant-petitioner. The appellant has a statutory alternative remedy of appeal under the Act, which he can avail for the redressal of his grievances. The Service Tribunal is competent to adjudicate the dispute on the question of facts as well as on law. The points which the appellant warns to agitate before us, can be agitated by him before the Tribunal. The appellant-petitioner may, therefore, approach the Tribunal for redressal of his grievances. The writ petition remained pending in the High Court for about eight years, i.e., between 1987 to 1995. If the appellant files an appeal within one month from today along with an application under Section 5 of the Limitation Act then the delay may be condoned and the appeal may be heard on merits by the Tribunal. The question of limitation will not come in the way of the appellant in the adjudication of appeal by the Tribunal. 28. We do not find any infirmity in the judgment passed by the learned single Judge. 29. In the result, we do not find any merit in this appeal and the same is hereby dismissed.Appeal dismissed. *******