The main legal point established is that the High Court should not entertain a petition if an alternate efficacious remedy is available before the Tribunal, as per the U.P. Public Services (Tribunal) Act, 1976 and relevant case law.

JUDGMENT

Ravindra Maithani, J. (oral). - Petitioner seeks the following relief:-

"(a) Issue a writ, order or directions in the nature of mandamus directing the respondents to consider the candidature of the petitioner for participating in the departmental exercise for promotion on the post of Sub-Inspector (Civil Police/Intelligence) pursuant to the advertisement dated 22.01.2021 issued by the Police Headquarters, Uttarakhand."

2. Heard learned counsel for the parties and perused the record.

3. Petitioner is a Head Constable in Civil Police. He intends to participate in the departmental promotional examination to be held on 21.02.2021.

4. It is the case of the petitioner that on 05.08.2015, he was awarded a punishment of censure entry. In the year 2015, when the petitioner appeared in the departmental promotional examination, four points were deducted from his service record for the two adverse entries, which the petitioner had acquired between the years 2008 and 2014. For the present examination, it is submitted that the candidature of the petitioner has been rejected because of the adverse entry which was awarded to him on 05.08.2015.

5. At the very outset, the Court wanted to know from learned counsel for the petitioner as to why this matter may not be entertained by the State Public Services Tribunal, (for short "the Tribunal") which is constituted under the U.P. Public Services (Tribunal) Act, 1976 (for short "the Act").

6. Learned counsel for the petitioner would submit that for an adverse entry on 05.08.2015 and for another adverse entry, marks had already been deducted in the last departmental examination, in which the petitioner appeared. Due to the same adverse entry, now the petitioner cannot be debarred to appear in the examination, in view of Article 20 of the Constitution of India, which according to the learned counsel for the petitioner, speaks of right to freedom. It is argued that it is the violation of Fundamental Rights of the petitioner, therefore, the alternate efficacious remedy is no bar for this Court to entertain the instant petition.

7. On the other hand, learned State Counsel would submit that the candidature of the petitioner has been rejected by the Uttarakhand Subordinate Service Commission and that order has not been challenged. It is also argued that this matter is entertainable by Public Services Tribunal and the direct writ petition in the High Court may not be entertained.

8. During the course of argument, learned counsel for the petitioner also made a reference to the judgment in the case of Bhuwan Chandra Pandey & others v. State of Uttaranchal & others; 2006 (2) U.D. 439, to argue that, in that judgment the scope of Section 5 (5-A) and Section 5 (5-C) has not been examined by the Court. Hence, the said judgment is per-incuriam. Learned counsel for the petitioner argued that Section 5 (5-A) of the Act bars grant of interim relief & in view of Section 5 (5-C) of the Act, an order of censure entry cannot be challenged, before the Tribunal. The remedy in the Tribunal cannot be said to be efficacious, therefore, the instant petition is maintainable.

9. There is no rule of law that if alternate efficacious remedy is available, the High Court under Article 226 of the Constitution of India cannot entertain the petition. There is no such rule.

10. In the case of State of U.P. v. Mohd. Nooh; AIR 1958 SC 86, the Hon'ble Supreme Court discussed the principle which covers the field. In para 10 of it, the Court observed as hereunder:

"10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy