Hon’ble S.K. Singh, J.—Heard Sri Bhupendra Nath Singh, learned Advocate in support of this appeal and Sri Subodh Kumar, learned Advocate who appeared for respondents.

2. This special appeal is directed against the judgment of the learned Single Judge dated 16.3.2012 passed in Civil Misc. Writ Petition No. 28744 of 2000.

3. To appreciate the issue some basic facts will be necessary.

4. Writ petition was filed by the appellant against the orders of the competent authority dated 17.5.2000 by which he was removed from service.

5. Appellant was serving as a Gateman in the Raj Ghat Project,Betwa River Board, Nandanpura, Jhansi. He applied for earned leave w.e.f. 1.4.2000 to 20.4.2000 on medical ground for his treatment and thereafter leave was extended by moving leave extension application dated 20.4.2000. He having been declared fit to resume duties, finally he joined his duties on 26.5.2000 upon which he was handed over with a letter dated 17.5.2000 stating his removal on the ground of unauthorised absence from duty.

6. Writ petition was filed by the appellant which was entertained and respondents were called upon to file response upon which pleadings completed. On 20.7.2009 the case was listed. On that date office of the learned Advocate states that case was not marked by the clerk and in absence of counsel writ petition was dismissed on the ground of alternative remedy.

7. On coming to know about the order the application for recall was filed alongwith application for condonation of delay. Ground for condonation is the mistake of the office of the learned Advocate in not marking the case and thus his absence but the recall has been rejected on 16.3.2012.

8. In the appeal the sole ground is that the writ petition having been entertained on merits in the year 2000 and pleadings having been completed it should not have been dismissed after about nine year on the ground of alternative remedy.

9. Submission is that on adjudication of the case on merits and on consideration of various aspects if the Court was to record a finding that various factual issues are to be decided it could have taken a view to dismiss the writ petition on the ground of availability of alternative remedy but straightway dismissal for that reason is not at all justified.

10. Be as it may, parties having agreed, we are to decide the appeal on merits.

11. At the start of the argument learned counsel for the respondents, as maintained in the writ petition raised a ground of dismissal of the appeal on the ground of alternative remedy for which writ petition was dismissed. The argument is that once petition is entertained and respondents are called upon to file response do not prohibit the Court not to dismiss the same on the ground of alternative remedy. If this is made a rule then it will be neither sound nor appropriate and sometimes it may be able of being misused. Reliance has been placed on the judgment given by the Apex Court in case of State of Uttar Pradesh and another v. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others, (2008) 12 SCC 675.

12. To the contrary, learned counsel for the appellant placed reliance on certain decisions of this Court and that of the Apex Court to submit that after entertaining the petition on merits and completion of pleadings, after such long, unless there are serious triable factual issue, petition is not to be dismissed on the ground of alternative remedy.

13. In a decision given by the Apex Court in case of M/s Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556, following observations were made—

“It is a well-established proposition of law 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 a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as