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IN THE HIGH COURT OF MADHYA PRADESH
Shivdayal, K.K. Dube, JJ.
Buddhanlal Gautam - Petitioner
Vs.
District Family Planning and Health Officer - Respondent
Misc. Pet. No. 120 of 1972 (J)
Decided On : 04-08-1977
(2) Civil Services (Classification, Control and Appeal) Rules, 1966 (MP) - R.23 -provision of appeal under - whether bars writ petition - Constitution of India - Art.226(3).
Shri Dixit, learned Dy. Government Advocate, raised a preliminary objection that the petitioner had the alternative remedy by way of an appeal under Rule 23 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. That being so, this petition could not be filed owing to the bar under Clause (3) of Article 226 of the Constitution of India and since this petition was pending on February 1, 1977, this petition must be held as abated by virtue of section 58(2) of the 42nd Constitution Amendment Act, 1976.
Held: Shri Fakhruddin, counsel for the petitioner, argues that when this petition was filed, although the alternative remedy was there, but it was not mandatory to take recourse to that remedy and the petition under Article 226 of the Constitution could not be dismissed merely on that ground alone. Therefore, the petitioner has a right that his petition should be heard.
2. In our opinion, the preliminary objection must prevail having regard to the clear and unambiguous language of section 58(2) of the 42nd Constitution Amendment Act, 1976, read with Clause (3) of Article 226 of the Constitution. The petitioner has the alternative remedy by way of an appeal. Petition dismissed as abated.
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