Courts may deny discretionary relief even if an order is unlawful if granting relief contravenes public policy or interests, emphasizing the importance of raising all relevant grounds in initial proceedings.

ORDER :

Sujoy Paul, J.

This is the second visit of the petitioner to this Court against the transfer order dated 3-7-2023. In previous round i.e. W.P. No. 15697 of 2023, the Court disposed of the petition by directing the respondents to decide the representation dated 4-7-2023 (Annexure P/8).

2. Shri Vikas Mishra, learned counsel for the petitioner submits that the respondents have rejected the representation by impugned order dated 14-8-2023 (Annexure P/1). In this rejection order, there is no reference to the representation and the Court order. It is submitted that the petitioner, a contractual employee, could not have been transferred. The previous transfer order dated 3-7-2023 is although modified by changing the place of transfer as Guna, the fact remains that a contractual employee is still transferred.

3. Shri Ankit Agrawal, learned Government Advocate supported the impugned order.

4. The petitioner neither in his previous representation dated 4-7-2023 (Annexure P/8) (with the previous petition) raised point of impermissibility of transfer of a contractual employee nor in the representation dated 15-7-2023 preferred after the decision of previous round.

5. The representation dated 4-7-2023 shows that petitioner raised ground only relating to personal inconvenience which cannot be a ground for interference in a transfer order.

6. In the first round, the petitioner was protected by this Court till decision is taken by the authority on his representation. The petitioner was obliged to take all possible factual and legal objections/grounds in his representation. If petitioner has failed to do so, he is bound to face the consequences. Putting it differently, if petitioner is permitted to raise new ground in a new round of litigation against the same transfer order, it will be against the public policy. In a case of this nature, even if, law is in favour of petitioner, relief can be refused in exercise of discretionary jurisdiction if it is against the public policy. The Division Bench of this Court considered this aspect in sufficient details in the common order dated 8-8-2019 passed in W. P. No. 11706 of 2013, Sitaram Giri vs. Union of India, and other connected matters. The relevant portion reads as under :—

“16. ….. it is trite that this Court may refuse to extend a particular benefit to the petitioners despite the fact that it would be lawful to do so. Such refusal may be on the ground that it will be against the public policy/interest. It is apposite to take note of certain judgments of Supreme Court on this point. In AIR 1964 SC 1419, Thansingh Nathmal vs. Supdt. of Taxes the Apex Court opined as under :

“The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so.”

(Emphasis Supplied)

In (1980) 2 SCC 437, M/s Shiv Shankar Dal Mills and others vs. State of Haryana and others in para 6 the Apex Court held as under :

“6. Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this flexible power, to pass such order as public interest dictates and equity projects.”

(Emphasis Supplied)

In (1984) 4 SCC 371, M.P. Mittal vs. State of Haryana the Apex Court held as under :

“…..it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdi