Court No. - 16
Case :- WRIT - A No. - 16829 of 2017 Petitioner :- Pawan Kumar Jain Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Vijay Gautam,Ambarish Chatterji Counsel for Respondent :- C.S.C.,Sahab Tiwari,Saurabh Tiwari
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the petitioner and learned counsel for respondents.
2. Counsel for respondents has brought to the notice of this Court para – 4 of the counter affidavit filed on behalf of the respondents No. 4 and 5, which clearly mentions that the petitioner has not availed the statutory remedy as is admissible to him under the Rule – 3 of the U.P. Municipal Servants Appeal Rules, 1967 read with Section – 77 A of the Uttar Pradesh Municipality Act, 1916.
3. The counsel for respondents has also pointed out that the counter affidavit also states that the petitioner has approached this Court after five years of passing of the dismissal order without disclosing sufficient reasons for the delay in approaching this Court.
4. The counsel for petitioner says that at the time when the writ petition was entertained as fresh, this objection regarding the maintainability of the writ petition was not taken at all and now since the writ petition has been entertained and affidavits have been exchanged, this Court should not hear the respondents on the ground of statutory remedy being available to the petitioner.
5. The Hon'ble Supreme Court in the case of State of U.P. and others Vs. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti and others, (2008) 12 SCC 675 has dealt with the argument raised by the counsel for litigants that since the writ petition had remained pending for long, it should not be dismissed on the ground of statutory remedy and has rejected such argument.
6. The petitioner is raising factual issue in this writ petition that can be appropriately dealt with by the appellate authority; as in writ jurisdiction this Court only decide the matters on the basis of affidavits of the parties and cannot go into the question of fact.
7. The writ petition is dismissed.
8. It is open for the petitioner to file appeal before the appellate authority under the Rules of 1967. In case the petitioner files such appeal, it will be open for the appellate authority to decide the same on merits.
Order Date :- 19.12.2018 LBY