JUDGMENT M. Katju and Kamal Kishore, JJ.
1. Heard Sri Rakesh Pandey, learned counsel for the petitioner and learned standing counsel. We have also heard Sri S. C. Budhwar, learned senior Advocate, and Sri A. Kumar and Sri S. A. Jilani, advocates as Amicus Curiae. We propose to lay down certain guidelines regarding the question as to when a petition regarding service matters should be directly entertained by this Court. In the present case, the petitioner has prayed for certain increments. The petitioner has prayed for grant of first Increment in category 'A' post of Deputy Director of Panchayat taking into account 7 years service in 'Kha' category post of District Panchayat Officer. The petitioner is on the post of Deputy Director. Panchayat, U. P. and hence he is a government servant. It is settled law that if there is an alternative remedy, the petitioner should ordinarily avail of that remedy before coming to this Court. In the present case, there is an alternative remedy of approaching the U. P. Public Service Tribunal which can decide questions of both law and fact. Hence, we are of the opinion that the petitioner should first approach the Tribunal, and only if he aggrieved by any order of the Tribunal, should he come to this Court by way of writ petition.
2. However, it is equally well settled that existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition. It is a matter of discretion and a writ petition can be entertained directly by this Court even when an alternative remedy exists. In service matters, what is seen is that sometimes this Court is entertaining writ petitions directly without relegating the petitioner to his alternative remedy before the Tribunal, while sometimes it dismisses the petition on the ground of alternative remedy. In our opinion, there should be some uniformity in the matter, since discretion should not be exercised arbitrarily.
3. Some of the counsel who have appeared as Amicus Curiae stated that petitions before the U. P. Public Service Tribunal are taking an Inordinate time to decide, e.g., 10 to 15 years, and some times even more. Sri Budhwar learned counsel whom we have heard as Amicus Curiae states that in one of his petitions which was filed before the Tribunal in 1979, the decision of the Tribunal was given in 1995, that is after 16 years. This is indeed unfortunate as such a long time makes justice almost a farce. Section 5 (5B) of the U. P. Public Service Tribunal Act has taken away the power in the Tribunal of granting stay in the matters relating to dismissal, suspension, removal, reduction in rank, reversion. compulsory retirement and termination. However, regarding other matters, the Tribunal has got power to grant stay. In our opinion, taking a practical view of the matter, the correct approach for this Court to adopt is that in matters referred to in Section 5 (58), petitions can be directly entertained by this Court because there is no power to grant stay in the Tribunal in such matters. If a government servant's service has been terminated and he is compelled to go to the Tribunal, then the result may be that the case will be decided after about 10 years or so and in the meantime, the government servant along with his family may be driven to starvation, even if ultimately his petition succeeds, because the Tribunal has no power to grant stay in such matters. In our opinion, the Court should take a practical view of the matter. One of the main principles for granting a stay order is to prevent irreparable loss, and there is certainly irreparable loss if a person is driven to starvation even though his petition is pending. Hence, we hold that in cases covered by Section 5 (5B), this Court shall ordinarily entertain petitions directly against the order of suspension, dismissal, removal, reduction in rank, termination, compulsory retirement, reversion, but in other matters, e.g., supersession, promotion, imposition of minor punishments, recovery, etc., this Court should not ordinarily entertain writ petitions directly. In particular where disputed questions of fact are Involved. In such other matters which are not covered by Section 5 (5B), the Tribunal has got power to grant stay and in our opinion, this is a good ground for not entertaining writ petitions directly in such matters.
4. The decision of the Supreme Court in State of U. P. v. Labh Chand, JT 1993 (2) SC 298 and of this Court in Mamta Jauhari v. State of U. P., 1998 ACJ 1523, in our opinion, cannot be interpreted to mean that whenever there is a remedy before the Tribunal, the writ petition must always be dismissed on the ground of alternative remedy. In a large number of decisions, the Supreme Court has held that alternative remedy is not an absolute bar to the maintainability of a writ petition, vide State of U. P. v. Indian Hume Pipe Co.. AIR 1977 SC 1132 (para. 4) : Smt. Kamlesh Gupta v. H. K. Mahavidyalaya. AIR 1987 SC 2186 (para 121 : Khurai Municipality v. Kamal Kumar, AIR 1965 SC 1321 ; Union of India v. Verma, 1958 SCR 499. etc. Thus the decision of the Supreme Court in Labh Ghana's case (supra), and of this Court in Mamta Jauhari's cose (supra), cannot be read in isolation but must be read along with the other decisions of the Supreme Court which have held that alternative remedy is not an absolute bar to the maintainability of a writ petition. In State of U. P. v. Md. Nooh, AIR 1958 SC 86, a Constitution Bench of the Supreme Court held that the rule of exhaustion of statutory remedy is a rule of policy, convenience and discretion rather than a rule of law.
5. In Assistant Collector v. Janson. AIR 1979 SC 1889, the Supreme Court held that existence of an alternative remedy Js no bar to the grant of relief under Article 226 if the aiternative remedy is too dilatory or difficult to give quick relief. In our opinion, existence of the power to grant stay is certainly a relevant consideration in deciding whether to entertain writ petitions directly or not, because the Tribunal is usually taking over 10 years, and often over 15 years, to finally decide petitions before it, and due to the lack of power of granting stay in certain matters irreparable loss may be caused to the petitioner in the meantime. Thus the alternative remedy is not efficacious in such matters.
6. We are also of the opinion that one of the reasons why there Is so much delay in deciding cases by the Tribunal is that at present the Tribunal is located only at Lucknow. In our opinion, there should be a Bench of the Tribunal in all divisions in U, P. so that cases can be decided quickly. Hence, we recommend to the State Government to consider at the earliest the feasibility of forming Benches of the U. P. Public Service Tribunal in all divisions in U. P.
7. In the present case, since the matter involved is not covered by Section 5 (5B), we are of the opinion that the petitioner, should avail of his remedy before the Tribunal. If the petitioner files a claim petition before the Tribunal within six weeks from today, the same will be entertained without raising any objection as to limitation and shall be decided within six months thereafter in accordance with law.