JUDGMENT D.S. Sinha, J.
1. This Full Bench has been constituted not to resolve any conflict of the decisions, point or points of fact or law. Indeed, the Full Bench is called upon to decide on merits the writ petition of Km. Mamta Jauhari, an erstwhile temporary employee of the State of Uttar Pradesh, serving as District Programme Officer (Woman), wherein legality of the order dated 5th December, 1994, terminating her services, is the subject-matter of challenge.
2. Writ petition was presented before the concerned Division Bench on 28th March, 1995. Under the direction of the Bench requisite affidavits were filed by the parties. The petition was heard by the Bench on 3rd July, 1996 and the judgment was reserved.
3. On 4th November, 1996 two separate well considered judgments and final orders of the learned Judges constituting the Bench were pronounced, signed and sealed in the open Court.
4. One final order reads thus :
"In the result, this writ petition succeeds and is allowed. The impugned order dated 5.12.1994 as published on 6.1.1995 is quashed. The respondents are directed to complete the disciplinary proceedings against the petitioner in accordance with law as expeditiously as possible preferably within six months from the date of presentation of certified copy of this order.
Sd./- Illegible 4.11.1996."
The other final order reads thus :
"After considering the submission of learned counsel for the petitioner Shri Ashok Khare, we are of the considered view that the termination has been made in accordance with the rules and it is not stigmatory and her services have been terminated in accordance with the Rules.
We, therefore, for the reasons recorded above dismiss the writ petition.
Sd./- Illegible 4.11.1996."
Thereafter, the learned Judges passed the following order :
"In view of difference of opinion, the papers be placed before the Hon'ble Chief Justice preferably within 24 hours for sending the matter for opinion to a third Judge.
Sd./- Illegible 4.11.1996.
Sd./- Illegible 4.11.1996."
Then, the Hon'ble the Chief Justice passed an order dated 19.11.1996 referring the matter to a third Judge.
5. The matter came up before third Judge on various dates between 28th February, 1997 and 2nd May, 1997 and had to be adjourned for various reasons, recorded on the order-sheet. Eventually, on 14th May, 1997 after hearing the learned counsel appearing for the parties, at length and In detail, following order was passed :
"Heard Sri Ashok Khare and Sri S. K. Srivastava, learned counsel appearing for the parties, at length and in detail.
It appears that this petition was heard by a Division Bench on 4th November. 1996. The Hon'ble Judges constituting the Bench delivered two different judgments. One proposing to dismiss the writ petition and the other proposing to allow the writ petition.
In view of the dissonance, the Hon'ble Judges passed an order directing the papers of the case to be placed before' the Hon'ble the Chief Justice for sending the matter for opinion to a third Judge.
On 19th November, 1996, the Hon'ble the Chief Justice passed the following order :
Referred to Hon'ble D. S. Sinha, J.
Sd./- D.P.M.
19.11.1996."
Learned counsel for the parties concede that instant reference is under Rule 3 of Chapter VIII of the Rules of Court, 1952 which reads thus :
"Procedure when Judges are divided in opinion.--When a case (to which the provisions of the Code of Criminal Procedure do not apply), is heard by a Division Court composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority, if there shall be a majority. Should the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
While dealing with the case of M/s. Shriram Industrial Enterprises Ltd. v. Union of India and others, 1996 All LJ 468, after considering the provisions of Rule 3 of Chapter VIII, extracted above, a Full Bench of this Court observed thus :
"The language of above quoted Rule is plain and admits of no ambiguity. If the Judges of Division Court which is composed of two Judges are equally divided in opinion, they may state the point upon which they differ and then the case shall be heard upon that point alone by one or more of the other Judges as may be nominated by the Chief Justice. The point about which a reference has been made shall then be decided according to the opinions of majority of the Judges who -have heard the case including those of the Division Court which heard it initially."
The Full Bench further observed as follows :
"There can be no doubt that the proper course for the Judges who have dissented in their respective opinions while hearing a writ petition is not to pass final order either allowing or dismissing the same but to state their point of difference after expressing their opinions. However. It will still be open to them to state the point upon which they have differed even if they have passed final orders."
Indisputably, in the instant case the Hon'ble Judges have neither stated the point or points upon which their Lordships differed nor have their Lordships recorded there any opinion thereon.
In view of the law laid down by the Full Bench in the case of M/s. Shriram Industrial Enterprises Ltd. v. Union of India and others (supra), it appears appropriate that the matter may be referred to the concerned Bench for formulating the point or points upon which there is difference and for recording opinion thereon.
Thus, it is directed that the record of the case be placed before the Hon'ble the Chief Justice for appropriate order/orders.
Sd./- D. S. Sinha.
14.5.1997."
6. Their Lordships constituting the Bench did not choose to state the point or points upon which they differed and lamented on the inability of the single Judge in locating the 'point' of difference in the two judgments as is apparent from their order dated 19th November, 1997, which reads thus :
"The two judgments passed by this Court are self-explanatory. Reasons exist to sustain the order of either of us and the conclusions reached in the respective Judgments. That is why the matter had to go to third Judge and the Hon'ble the Chief Justice was graciously pleased to send it to the Hon'ble third Judge. It is a different matter that the learned single Judge has not been able to locate the point of difference in the two judgments.
Nonetheless the questions raised in the writ petitions noted In the respective judgments are of vital importance and may have far reaching consequences. Moreover, having once pronounced the judgment it does not appear in the fitness of the things to frame points of difference or interpret that judgment judiciously all over again to facilitate the hearing by a third Judge. Under the circumstances, it is respectfully suggested that the entire writ petition may go before a Full Bench as early as possible.
The papers be laid before the Hon'ble the Chief Justice to send the writ petition before a Full Bench. It is respectfully suggested that Full Bench may be nominated at the earliest possible convenience by the Hon'ble the Chief Justice because only in the process of transmission of this record from this Court to single Judge and from single Judge to this Court, it has consumed more than a year.
Sd./- Illegible Sd./- Illegible."
19.11.1997.
Eventually, the Hon'ble the Chief Justice constituted this Full Bench vide order dated 28th January. 1998.
7. At the outset, the question calling advertance is whether petitioner should have been permitted to invoke the special and extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India irrespective of availability of effective statutory alternative remedy by way of reference of claim before the State Public Services Tribunal under Section 4 of the U. P. Public Services (Tribunal) Act, 1976 (hereinafter called the 'Act').
8. The scope of discretion of the High Court to entertain a writ petition under Article 226 of the Constitution of India where appropriate, adequate and efficacious remedy is available to the petitioner has been subject-matter of consideration, inter alia, in K.K. Srivastava v. Bhupendra Kumar Jain. AIR 1977 SC 1703 ; Bar Council of Delhi and another v. Surjeet Singh and others. AIR 1980 SC 1612 and Gujarat University v. N. U. Rajguru and others, AIR 1988 SC 66. In these decisions, the Hon'ble Supreme Court held that except where there exist exceptional or extraordinary circumstances or the alternative remedy is inadequate or inefficacious, the High Court should decline to entertain a petition under Article 226 of the Constitution of India, A Full Bench of this Court also considered this aspect in the case of Chandrama Singh v. Managing Director, U. P. Cooperative Union, Lucknow and others, 1991 Lab IC 2413 : (1991) 2 UPLBEC 898 : 1991 ACJ 784, and. after considering the various decisions of the Hon'ble Supreme Court, it concluded thus :
"The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well-settled normal rule of relegating the petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that "there is no other equally efficacious or adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India". The petitioner must furnish material facts and particulars to sustain such a plea."
9. In the instant case, the petitioner has made merely a casual and bald statement in paragraph 45 of the petition that she "has no other efficacious alternative remedy than to file the present petition under Article 226 of the Constitution". Obviously, this is not sufficient to meet the requirement pointed by the Full Bench in Chandrama Singh's case.
10. In the case of State of U. P. and another v. Labh Ghana, JT 1993 (2) SC 298, the Hon'ble Supreme Court had the occasion to consider the question whether a High Court should not normally permit the petitioner to invoke its jurisdiction under Article 226 of the Constitution of India when a Statutory Forum or Tribunal specially created by a statute for redressal of his grievance is available ; and whether the remedy by way of reference of claim before the State Public Services Tribunal available to a public servant, defined under the Act, for ventilation of his grievances relating to matters of employment is adequate and efficacious, and whether he should be allowed to by-pass the said remedy. The Hon'ble Supreme Court held as follows :
"When a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well-settled. A Constitution Bench of this Court in Thansingh Nathmal and others v. A. Mazid, Superintendent of Taxes. (1964) 6 SCR 655, when had the occasion to deal with the question as to how the discretionary jurisdiction of a High Court under Article 226 of the Constitution, was required to be exercised respecting a petition filed thereunder by a person coming before it bypassing a statutory alternate remedy available to him for obtaining redressal of his grievance ventilated in the petition, has given expression to the said well-settled legal position, speaking through Shah, J., as he then was, thus :
"The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject