M.N.Shukla, J. - (1.) By means of this writ petition the petitioner has challenged the order dated 21-4-81 retiring him from his employment as clerk in the Zila Parishad, Agra. It is stated that the petitioner had already completed 50 years of age and hence the retirement order appears to have been passed under the Amended Rule 53 of the U P. Zila Parishad Service Rules. It is not disputed that the petitioner had an alternative remedy available to this by filing an application under Section 4 of the U P. Public Services Tribunal Act which is competent to deal with such cases. It was, however, vehemently urged on behalf of the petitioner by the learned counsel that there was no rigid or absolute bar in entertaining a writ petition by the High Court notwithstanding the existence of an alternative remedy. Secondly, it was emphasized that since in the instant case allegations of mala fides were made against respondent no. 3 Sri Sabwal Kumar Mukherji, ex District Magistrate/Adhyaksh, Zila Parishad, Agra and respondent no. 4 namely, Sri Ram Rajan, Atriktya Mukhya Adhikari, Zila Parishad, Agra, this was a sufficient ground for not relegating the petitioner to the alternative remedy available to this under U. P. Public Services Tribunal Act. We are unable to accede to these contentions. It is True that the reluctance's of this Court to entertain a petition under Article 226 of the Constitution where an alternative remedy is available, does not operate as an impregnable bar, nor is such a writ petition incompetent. It is, however, a rule of prudence and inconformity with the very nature of issuing a writ that unless an alternative remedy has been exhausted the extraordinary and discretionary jurisdiction of this Court should not be exercised. Wherever the confidence of the Court is ground and it is genuinely felt that the petitioner would suffer irreparable the Court has no compunction entertaining a writ petition even though there may be an alternative remedy.
(2.) The question whether mere allegation of mala fide is a sufficient ground for waiving the well-established bar of alternative remedy is very problematic. In the first place, this would afford a handle to unscrupulous petitioners to invent aliegmions of mala fides and thereby oust the jurisdiction of a competent tribunal constituted under a statute to deal with a class of cases. Secondly, it completely passes comprehension as to why the Public Service Tribunal constituted under the U. P. Public Services Tribunal Act, 1976 which may and home times does have on its personnel Judges it is members of the judicial service should be deemed to be incapable of appreciating and assessing allegations of mala fides. In fact the Tribunal enjoys very wide jurisdiction under the Act and can deal with all questions of fact as well as law by allowing the parties to adduce evidence. It is true that the jurisdiction of this Court under Article 226 of the Constitution is comparatively circumscribed. Even allegation of n ala fides by and Hire do require evidence on factual points to establish them, which can more satisfactorily be attempted in a Tribunal which has direct jurisdiction to decide controversies of fact. There are certainly some exceptions where this bar is lifted and the High Courts do not like exception to entering writ petitions in spite of the existence of an alternative remedy. To give only one instance, if the constitution of a tribunal itself i.e. its vires is. challenged, obviously it will be factuous to plead the bar of alternative remedy.
(3.) The learned counsel for the petitioner referred to three decisions in support of his contention. We are of the opinion that they do not promote the argument that he has advanced- Broadly speaking these cases may be distinguished on the ground that where the entire process had been gone through and the plea of alternative remedy was canvassed only at the time of final hearing, this Court refused to accept the objection, where, however at the very inception this objection is taken and is not squarely met by the counsel for the petitioner the decisions relied on by him are not applicable. In the first place, the learned counsel referred to a Division Bench decision of this Court in Chandra Deo Singh v. The State of U. P. and others reported in 1977 Labour and Industrial Cases 1720. In that case the petition was allowed at the time of final hearing when the plea of alternative remedy was raised and Hon'ble C.S.P. Singh, J. speaking for the court observed:- "The petition was entertained by this court even though such a remedy existed and the petitioner had resorted to it This being so, and as we are of the view that the order passed does not appear to refrain from granting relief to the petitioner." As we have already observed, if this Court initially entertains a writ petition and the parties are heard and the court is satisfied on the merits of the case, it would be too late in the day to throw out the petition on the ground of alternative remedy. The instant case is listed before us only for admission at the initial stage.;