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In case of Alternative Remedy available, Petition under Article 226 not to be entertained: Delhi High Court

The High Court, in exercise of discretion under Article 226, will not entertain a petition under Article 226 when the statutory alternate remedy is available was held by the Delhi High court in case of RAJNI PARMAR V. DIRECTOR GENERAL ARMED FORCES MEDICAL SERVICES & ORS. [W.P. (C) 11149/2020]

Facts of the case are, the petitioner, a Junior Hindi Translator with the respondent No.1 Director General Armed Forces Medical Services (DGAFMS), has filed this petition impugning the order dated 17th December, 2020 and seeking a direction to the respondents to consider the case of the petitioner on compassionate grounds at the post of Junior Hindi Translator at Respondent no. 3 Armed Forces Medical Store Depot (AFMSD) Delhi Cantt., which is stated to be lying vacant.

Importantly, the petition was found to be in abuse of the process of the Court.  HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW AND HON’BLE MS. JUSTICE ASHA MENON stated that, “What shocks us is that a transferable employee has been able to, by abusing the process of the court, stall transfer for so long.

However, the petitioner, being a civilian employee, has the remedy of approaching the Central Administrative Tribunal (‘CAT’) and has in the past in fact approached the CAT. However, his contention is that the petitioner “can always approach the High Court under Article 226 of the Constitution of India”

Also, the counsel for the petitioner does not dispute that the job of the petitioner is transferrable. The counsel for the petitioner however contends that since there is a vacancy at Delhi, the petitioner, owing to her family circumstances, should be posted against that vacancy. However, he again agrees that merely because there is a vacancy, there is no right to be appointed at that vacancy. As far as, the family circumstances of the petitioner are concerned, the same are not found by us to be of such nature which any of the other government employee, also desiring to be posted at Delhi, would not have.

Nonetheless, the counsel for the petitioner stated that the petitioner is willing to join at AFMSD Lucknow within two weeks of the transfer order being issued. He stated that the transfer order has not been issued till now and without the transfer order, the petitioner cannot proceed to Lucknow.

Moreover, the undertaking of the petitioner that she will, on or before 30th December, 2020, join at AFMSD Lucknow, is accepted and the W.P. (C) 11149/2020 Page 5 of 5 petitioner, through counsel, is made aware of the consequences of breach of undertaking given to the Court.

Delhi High Court held that “Subject to the petitioner complying with the undertaking and performing her duties at AFMSD Lucknow, the writ petition be treated as a representation of the petitioner for being transferred from AFMSD Lucknow to a unit in Delhi and the said representation be decided on or before 31st March, 2021. 16. The petition is disposed of subject to just exceptions and as per extant rules.”

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