IMPORTANT POINT
The existence of an alternative remedy does not preclude the maintainability of a writ petition; however, the court retains discretion to entertain such petitions based on jurisdictional issues or violations of natural justice.

JUDGMENT :

ABDUL MOIN, J.

1. Heard learned counsel for the petitioner and Sri Saharsh Srivastava, learned Additional Chief Standing Counsel appearing for the respondents.

2. Instant petition has been filed challenging the order of removal dated 12.01.2024, a copy of which is Annexure-2 to the writ petition.

3. A preliminary objection has been taken by Sri Saharsh Srivastava, learned Additional Chief Standing Counsel that the petitioner has an alternative and statutory remedy of filing an appeal against the order impugned.

4. However, learned counsel for the petitioner states that as the order impugned is patently without jurisdiction having been passed by the Sub Divisional Magistrate, who is not the appointing authority rather the appointing authority is the District Magistrate. Further, the order impugned has been passed in gross violation of principles of natural justice and consequently placing reliance on the judgment of the Apex Court in the case of Harbanslal Sahnia and another vs. Indian Oil Corporation Limited and others, AIR 2003 SC 2120 and a Division Bench judgment of this Court passed in Special Appeal No. 73 of 2012 in re: Rajendra Prasad Upadhyaya vs. State of Uttar Pradesh and others decided on 29.03.2012, the contention is that as the order impugned is patently without jurisdiction and in gross violation of natural justice as such the statutory and alternative remedy of appeal would not be an absolute bar in this Court entertaining the petition. Reliance has also been placed on the judgment of this Court in the case of Smt. Manju Devi vs. State of Uttar Pradesh and others passed in Writ-C No. 29150 of 2018 decided on 28.08.2018.

5. Whether the remedy of statutory appeal would be an absolute bar for entertaining a petition has been considered threadbare recently by the Supreme Court in the case of M/s Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer Cum Assessing Authority and others passed in Civil Appeal No. 5393 of 2010 wherein the Apex Court vide judgment and order dated 01.02.2023 after considering its earlier judgments has held as under:

“4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdict