IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA rd ON THE 3 OF JULY, 2023 WRIT PETITION No. 14199 of 2023 BETWEEN:-

SHER ALI PATEL S/O SHREE HAZI REHMAT ALI PATEL, AGED ABOUT 48 YEARS, OCCUPATION: PANCHAYAT SECRETARY R/O GRAM BYAORA TEHSIL AND DISTT.

UJJAIN (MADHYA PRADESH)

.....PETITIONER (BY SHRI GOURAV SHRIVASTAVA - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY VALLABH BHAWAN BHOPAL (MADHYA PRADESH)

2. COLLECTOR UJJAIN, DIST. UJJAIN (MADHYA PRADESH)

3. SUB DIVISIONAL OFFICER (REVENUE) UJJAIN, DIST. UJJAIN (MADHYA PRADESH)

4. TEHSILDAR TEHSIL UJJAIN, DIST. UJJAIN (MADHYA PRADESH)

5. CHIEF EXECUTIVE OFFICER DISTRICT PANCHAYAT UJJAIN, DIST. UJJAIN (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI TARUN KUSHWAH -G.A.)

This petition coming on for admission this day, the court passed the following:

ORDER

In the instant petition filed under Article 226 of the Constitution of India, Signature Not Verified Signed by: VARGHESE the petitioner has challenged the order of suspension passed under the provisions of M.P. Panchayat Services (Discipline and Appeal) Rules 1999 (hereinafter referred to as 'Rules').

2. Counsel for petitioner submits that the petitioner is working as a Panchayat Secretary and he has been placed under suspension on the allegation that the gram panchayat has done mining activities without the permission of the mining department which resulted into loss of royalty of Rs.6.40 lakhs. Counsel for petitioner submits that as per the Circular of the government dated 19.10.2022 no permission is required for mining by gram panchayat and, therefore, the order is passed on non existent ground.

3. Counsel for respondents raised preliminary objection on the ground that alternative and efficacious remedy of appeal under Rule 15 of Rules is available to the petitioner and, therefore, the present petition is not maintainable.

4. Per contra, learned counsel for petitioner submitted that an alternative remedy is not an absolute bar for entertaining the writ petition. He has referred to the judgment passed by the division bench in the case of Alok Kumar Choubey Vs. State of MP & Ors. 2021(1)MPLJ 348.

5. After hearing learned counsel for petitioner and taking into consideration that the alternative and efficacious remedy of appeal is available to the petitioner, I am not inclined to entertain the petition on merit. The law regarding entertaining the writ petition despite alternative remedy is no longer res integra. There is no absolute bar for this Court to exercise writ jurisdiction despite availability of alternative remedy but the jurisdiction is extra ordinary and discretionary. In the present case, challenge has been made to order of suspension which is not an order of punishment. The judgment relied by the learned counsel for petitioner does not relate to challenge to the order of Signature Not Verified Signed by: VARGHESE suspension but it was relating to the forfeiture of performance, guarantee, security etc. Therefore, the same would not apply to the facts of the present case. In the case of S.A. Khan Vs. State of Haryana (1993) 2 SCC 327, the Apex Court declined to invoke writ jurisdiction against an order of suspension on the ground of availability of alternative remedy of appeal.

6. Considering the availability of alternative and efficacious remedy of appeal, against an order of suspension, I am not inclined to entertain the petition. The petition is disposed off with liberty to the petitioner to avail the remedy of appeal in accordance with law.

(VIJAY KUMAR SHUKLA)

JUDGE VM Signature Not Verified Signed by: VARGHESE