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2017 DIGILAW 2229 (ALL)

NEERAJ KUMAR VISHWAKARMA v. STATE OF U. P.

2017-09-20

P.K.S.BAGHEL

body2017
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner was an Assistant Teacher in a Basic School run by Basic Education Board. He has preferred this writ petition for the following relief : “a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 6.5.2017 passed by Zila basic Siksha Adhikari, Allahabad (Annexure-3 to the writ petition) and also quashed the part of the reinstatement order dated 21.7.2017 (Annexure-7) to the writ petition. b) Issue a writ order or direction in the nature of mandamus directing to the respondent No. 2 to decide the appeal of the petitioner dated 23.5.2017 (Annexure-6) to the writ petition. c) Issue the nature of mandamus directing to the respondent No. 4 to reinstatement to the petitioner with annual increment and pay the full salary of the petitioner.” 2. The essential facts are that the petitioner was initially appointed on 28.12.2005 on the post of Assistant Teacher in Prathmik Vidyalay Khamaniya Vikas Khand Uruwa, District-Allahabad. His services are governed under the provisions of U.P. Basic Education (Teachers) Service Rules, 1981. He got his promotion on the post of Assistant Teacher in Senior Basic Schools in the pay-scale of 9300-34800 (G.P. 4600) and was posted in Purva Madhyamik Vidyalay Kahli Vikas Khand, Bahariya, District-Allahabad. 3. On the basis of an inspection report submitted by Khand Siksha Adhikari, Bahariya, Allahabad, he was placed under suspension on 6.5.2017 on the ground of the negligence. It appears that he was subjected to the disciplinary proceedings, the disciplinary authority has appointed Khand Siksha Adhikari, Bahariya as an Inquiry Officer. The petitioner was given full opportunity. The Investigating Officer in his report dated 11.7.2017 found all the charges against the petitioner proved. The Zila Basic Shiksha Adhikari, respondent No. 4. vide order dated 21.7.2017 imposed punishment upon the petitioner, whereby one annual increment was withheld and a warning was issued to him. A copy of his letter dated 21.7.2017 is on the record (Annexure-7). 4. It is stated that aggrieved by the order of Zila Basic Shiksha Adhikari the petitioner preferred an appeal before the second respondent on 23.5.2017. In paragraph 17 of the writ petition it is stated that appeal is still pending and no decision has been taken. In the instant writ petition the petitioner has challenged the order of Zila Basic Shiksha Adhikari imposing minor penalty upon him. In paragraph 17 of the writ petition it is stated that appeal is still pending and no decision has been taken. In the instant writ petition the petitioner has challenged the order of Zila Basic Shiksha Adhikari imposing minor penalty upon him. Learned counsel for the petitioner submitted that the procedure provided under Rule 10 of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 has not been followed, therefore, the order of awarding punishment is illegal. Alternatively he submits that this Court may issue a direction to the second respondent to decide the appeal. 5. The petitioner has challenged his suspension order and the order imposing minor punishment upon him. He has also sought a direction to decide the appeal which he has filed against the order of minor punishment. 6. As regards the relief sought by the petitioner to set aside the suspension order, the said relief is misconceived. Once the disciplinary proceedings have been brought to its logical end and the petitioner has been awarded minor punishment. He has been reinstated by the order dated 21.7.2017, thus, the order of suspension ceased to exit. Aggrieved by the order of punishment, the petitioner has preferred an appeal on 17.5.2017 and the same is still pending, thus the writ petition challenging the order of punishment is not maintainable. 6-A. It is trite that two parallel remedies cannot be persuaded by a person. Petitioner has filed the appeal on 17.5.2017 and without waiting for a reasonable time, against the same order, he has preferred this writ petition, hence the writ petition is not maintainable on the ground that petitioner is seeking parallel remedies. Reference may be made to the judgement of the Supreme Court in the case of Jai Singh v. Union of India and others, AIR 1977 SC 898 , which has been followed in several cases, wherein it has been held that under Article 226 of the Constitution, if a remedy has already been availed, parallel remedy cannot be sought. 7. The learned Standing Counsel has submitted that the appeal lies to the Secretary, U.P. Board of Basic Education but petitioner has not impleaded the Secretary as a party in the writ petition. Hence relief sought by the petitioner cannot be granted in absence of necessary party. 8. I have heard learned counsel for the parties and perused the record. 9. The learned Standing Counsel has submitted that the appeal lies to the Secretary, U.P. Board of Basic Education but petitioner has not impleaded the Secretary as a party in the writ petition. Hence relief sought by the petitioner cannot be granted in absence of necessary party. 8. I have heard learned counsel for the parties and perused the record. 9. After considering the submissions made by learned counsel for the parties and perusing the record, I find that the instant writ petition is a misconceived petition. The petitioner has been awarded minor punishment and he has been reinstated but he has challenged the suspension order in this writ petition. The order dated 21.7.2017 clearly demonstrates that he has been reinstated, hence the suspension order ceased to exist. In addition to above, he has preferred the appeal on 17.5.2017 and rushed to this Court without waiting for a reasonable time. Recently a Division Bench of Delhi High Court in the case of Kotak Mahindra Bank Ltd. v. Bank of Baroda and another, Writ Petition No. 9828 of 2015, has noticed that in the last 10-15 years the High Courts in the country have become very liberal in entertaining the writ petitions under Article 226 of the Constitution. The litigants treat the jurisdiction under Article 226 as the only medicine for all ailments, with the result roasters of all the High Courts are choked with huge arrears of cases and the important cases are becoming infructuous. Relevant part of the judgement of the Delhi High Court reads thus: “...The jurisdiction of the High Court under Article 226 of the Constitution of India is an extraordinary remedy, to be not invoked or allowed to be invoked ordinarily, as is found being done increasingly, leaving very little time for the High Courts to deal under Article 226 with issues really deserving consideration thereunder. Supreme Court, as far back as in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163 and Nain Sukh Das v. The State of Uttar Pradesh, AIR 1953 SC 384 , held that prerogative writs are extraordinary remedies intended to be applied in exceptional cases in which the ordinary legal remedies are not adequate but in the last over half century the said principle appears to have been forgotten, with the writ remedy being considered as a cure for all ordinary ailments also and for which the ordinary legal remedies under the civil law are adequate. The same has resulted in the High Courts being inundated with writ petitions, the disposal whereof axiomatically is found to be taking, in most cases, as much time as the disposal of an ordinary civil lis, and which has resulted in the High Courts facing difficulty in providing immediate relief even in deserving cases in writ jurisdiction and/or being left with little time to ponder over the important constitutional issues coming before it in the writ jurisdiction. In my humble view, a time has thus come for the High Courts to send out a clear message of the writ remedy being an extraordinary remedy not available as an alternative to the remedy already available under the civil and general laws.” 10. The Supreme Court in the case of Subrata Roy Sahara v. Union of India and others, (2014) 8 SCC 470 and Phool Chandra and another v. State of Uttar Pradesh, (2014) 13 SCC 112 , has held that the High Courts should curb the tendency of filing frivolous writ petitions by imposing heavy cost on the petitioners and the advocates also. Relevant part of the judgment in Phool Chandra (Supra) is extracted below: “12. All these are aberrations in the functioning of the Apex Court of any country. Of late, there has been an increase in the trend of litigants rushing to the Courts, including this Court, for all kinds of trivial and silly matters which results in wastage of public money and time. A closer scrutiny of all such matters would disclose that there was not even a remote justification for filing the case. It is a pity that the time of the Court which is becoming acutely precious because of the piling arrears has to be wasted on hearing such matters. A closer scrutiny of all such matters would disclose that there was not even a remote justification for filing the case. It is a pity that the time of the Court which is becoming acutely precious because of the piling arrears has to be wasted on hearing such matters. There is an urgent need to put a check on such frivolous litigation. Perhaps many such cases can be avoided if the learned counsel who are officers of the Court and who are expected to assist the Court tender proper advice to their clients. The Bar has to realise that the great burden upon the Bench of dispensing justice imposes a simultaneous duty upon them to share this burden and it is their duty to see that the burden should not needlessly be made unbearable. The Judges of this Nation are struggling bravely against the odds to tackle the problem of dispensing quick justice. But, without the cooperation of the gentlemen of the Bar, nothing can be done. 13. It is high time that the Courts should come down heavily upon such frivolous litigation and unless we ensure that the wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigation. In order to curb such kind of litigation, the Courts have to ensure that there is no incentive or motive which can be ensured by imposing exemplary costs upon the parties as well as on the learned counsel who act in an irresponsible manner. {Vide Varinderpal Singh v. M.R. Sharma, 1986 Supp SCC 719, Ramrameshwari Devi v. Nirmala Devi, (2011) 8 SCC 249 : (2011) 4 SCC (Civ) 1, and Gurgaon Gramin Bank v. Khazani, (2012) 8 SCC 781 : AIR 2012 SC 2881 .} 11. Applying the law laid down in the above mentioned case, I find that the instant writ petition lacks merit and is liable to be dismissed with heavy cost. However, learned counsel for the petitioner submits that petitioner shall be careful in future while seeking judicial remedy in the Court. In view of the said statement, no cost is imposed.