R.D Kirar vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2026:MPHC-GWL:26568
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE ANAND SINGH BAHRAWAT
rd
ON THE 3 OF SEPTEMBER, 2026
WRIT PETITION No. 34990 of 2026
R.D KIRAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vishan Kumar Kushwah - Advocate for the petitioner.
Shri B.M. Patel - Government Advocate for respondents/State.
ORDER
Present petition under Article 226 of the Constitution of India has been
filed seeking the following reliefs:-
"(i) That, the present petition filed by the petitioner may kindly be
allowed.
(ii) That, the impugned order dated 01.01.2026 (Annexure P/1)
passed by respondent No.3 may kindly be directed to be quashed
and further direct the respondents to reinstate the petitioner in
service and permit him to discharge his duties on the post held by
him, with all consequential benefits.
(iii) That, this Hon'ble Court may kindly be pleased to direct the
respondents to pay to the petitioner 50% of his admissible
salary/wages for the period commencing from 01.01.2026 till the
date of payment, as subsistence allowance during the period of
suspension, and thereafter to release the full salary/wages for the
period during which the petitioner has been illegally deprived of
his duties, along with interest @ 12% per annum on the delayed
payment from the respective dates on which the amounts became
due till the date of actual payment, within such period as may be
fixed by this Hon'ble Court.
(iv) That, any other just, suitable and proper relief, which this
Hon'ble Court deems fit, may also kindly be granted to the
petitioner."
2. Learned counsel for the petitioner submitted that petitioner is a low-
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CHATURVEDI
Signing time: 9/3/2026
5:28:16 AM

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paid contractual employee, initially appointed as Sub-Engineer vide

appointment order dated 12.10.2006 (Annexure P-2) by the Collector and
District Programme Coordinator, Sheopur, and was subsequently given the
charge of Assistant Engineer. It is submitted that the petitioner’s retirement is
due on 31.12.2026, with only about three and a half months remaining, yet
he has continued under suspension for more than eight months and has not
been paid any subsistence allowance. It is further submitted that the M.P.
State Employment Guarantee Council formulated a policy on 24.06.2025,
under Clause 7, prescribing the procedure relating to discipline, control,
termination and appellate remedies; specifically, Clause 7.2(b) mandates
completion of an enquiry within two months where allegations are made,
whereas Clause 7.2(c) can be invoked only after compliance with the said
requirement. However, without initiating or conducting any enquiry,
respondent No.3 treated the show-cause notice itself as an enquiry and, on
that basis, directed that the petitioner’s works be taken over, effectively
placing him under suspension. A show-cause notice dated
29.12.2025 (Annexure P-5) was issued to the petitioner alleging that he had
granted technical sanction for a work relating to a Gram Panchayat falling
within the jurisdiction of Janpad Panchayat, Vijaypur, to which the petitioner
duly submitted his reply on 31.12.2025 (Annexure P-4) and submitted that
under the directions/circular issued by the Government of M.P., Department
of Panchayat and Rural Development in 2025, the petitioner, being In-charge
Sub-Engineer, was competent and duly authorized to grant such technical
sanction. Despite the said circular, respondent No.3 passed the impugned
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order dated 01.01.2026 (Annexure P-1) without considering the petitioner’s

competence under the applicable directions. Learned counsel submitted that
such action is arbitrary, illegal, without jurisdiction and violative of natural
justice, particularly considering the petitioner’s low-paid contractual status
and his imminent retirement.
3. Per contra, learned counsel for the respondents/State while
supporting the impugned suspension order submits that it has rightly been
passed and raises preliminary objection as to maintainability of petition
because petitioner has an alternative statutory remedy of appeal.
4. Heard the learned counsel for the parties and perused the record.
5. Before adverting to the facts of the present case, this Court feels it
apt to mention the pronouncement rendered by the Hon'ble Apex Court with
regard to the alternative remedy.
6. Decisions of the Apex Court are legion from which guidance can
aptly be drawn as to when a writ petition ought to be entertained despite the
party approaching the High Court not exhausting the alternative statutory
remedy available to him/her/it. The Apex Court relying on a host of
decisions including State of Uttar Pradesh v. Md. Nooh [AIR 1958 SC
8 6 ] , Titaghur Paper Mills v. State of Orissa [(1983) 2 SCC 433],
and in Godrej Sarah Lee v. Excise and Taxation Officer-cum-Assessing
Authority [2023 SCC OnLine SC 95], reiterated that availability of an
alternative statutory remedy does not oust the jurisdiction of a writ court. It
was also explained how “entertainability of a writ petition” is a concept
distinct from the concept of “maintainability of a writ petition”.
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7. In Thansingh Nathmal v. A. Mazid, Superintendent of Taxes [AIR

1964 SC 1419], the Apex Court had the occasion to lay down a principle of
law, which is salutary and not to be found in any other previous decision
rendered by it. The principle, plainly, is that, if a remedy is available to a
party before the High Court in another jurisdiction, the writ jurisdiction
should not normally be exercised on a petition under Article 226, for, that
would allow the machinery set up by the concerned statute to be bye-passed.
The relevant passage from the decision reads as follows:
"The jurisdiction of the High Court under article 226 of the
Constitution is couched in wide terms and the exercise thereof is
not subject to any restrictions except the territorial restrictions
which are expressly provided in the article. But the exercise of the
jurisdiction is discretionary; it is not exercised merely because it is
lawful to do so. The very amplitude of the jurisdiction demands
that it will ordinarily be exercised subject to certain self-imposed
limitations. Resort to that jurisdiction is not intended as an
alternative remedy for relief which may be obtained in a suit or
other mode prescribed by statute. Ordinarily the court will not
entertain a petition for a writ under article 226, where the
petitioner has an alternative remedy, which, without being unduly
onerous, provides an equally efficacious remedy. Again the High
Court does not generally enter upon a determination of questions
which demand an elaborate examination of evidence to establish
the right to enforce which the writ is claimed. The High Court
does not therefore act as a court of appeal against the decision of a
court or tribunal, to correct errors of fact, and does not by
assuming jurisdiction under article 226 trench upon an alternative
remedy provided by statute for obtaining relief. Where it is open to
the aggrieved petitioner to move another tribunal, or even itself in
another jurisdiction for obtaining redress in the manner provided
by a statute, the High Court normally will not permit, by
entertaining a petition under article 226 of the Constitution, the
machinery created under the statute to be by-passed, and will leave
the party applying to it to seek resort to the machinery so set up."
8. That apart, the majority view in a previous Constitution Bench in A.
V Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj
Wadhwani [AIR 1961 SC 1506] reads thus:
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“14. ..., we must express our dissent from the reasoning by which
the learned Judges of the High Court held that the writ petitioner
was absolved from the normal obligation to exhaust his statutory
remedies before invoking the jurisdiction of the High Court
under Article 226 of the Constitution. If a petitioner has disabled
himself from availing himself of the statutory remedy by his own
fault in not doing so within the prescribed time, he cannot
certainly be permitted to urge that as a ground for the Court
dealing with his petition under Article 226 to exercise its
discretion in his favour. Indeed, the second passage extracted from
the judgment of the learned C.J. in Mohammed Nooh case with its
reference to the right to appeal being lost ‘through no fault of his
own’ emphasizes this aspect of the Rule.”

9. While deciding whether to entertain a petition under Article
226 bearing in mind the precedents in the field, a writ court ought to
additionally notice the forum designated by the statute for the litigant to
approach. This is necessary because the alternative forum that is provided by
the statute has to be one which can dispense speedy and efficacious relief.
However, as in the present case, if the statutorily designated alternative
forum happens to be the High Court itself whose jurisdiction under Article
226 is invoked and not any ordinary statutory functionary/tribunal, refusal to
entertain the petition should be the rule and entertaining it an exception.
10. True it is that when petitioner is having statutory alternative
remedy of appeal, then certainly petitioner must avail it first before
approaching this Court by this petition under Article 226 of the Constitution
of India.
11. Accordingly, this petition is disposed of with a direction to the
petitioner to prefer an appeal before the competent appellate authority within
a period of two weeks from today and if the petitioner prefers the appeal
within the aforesaid time, the appellate authority is directed to decide the
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appeal of the petitioner on merits by reasoned and speaking order after giving

personal opportunity of hearing to the petitioner within a period of
one month from the date of receipt of certified copy of this order.
12. However, this Court has not expressed any opinion on the merits
of the case.
(ANAND SINGH BAHRAWAT)
JUDGE
Abhi

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