Note

Research of given 2 issues of a case.

Issues hereby are as follows:
(i) Whether a contract of service purely governed by its terms and
conditions, can be subjected to examination, even when it is not
challenged and willingly accepted by the contractual employee at the
time of entry into the service, and writ jurisdiction be invoked when
remedy under the contract is by a specific clause for invoking arbitration?
(ii) Whether the judgment rendered by the Division Bench of this Court in
Rajesh Bhardwaj and others Vs. Union of India and others reported in
(2019 2 ADJ 830) lays down the law correctly or the judgment of the
Division Bench of this Court in Prem Chandra Gupta Vs. State of U.P.
and 4 others (Special Appeal No.104 of 2021, rendered on 14.06.2021)
should be followed?
Synopsis
The following issues wherein the concerned topics are of that if a writ is to be
maintained in a matter of contract with one party as state and the other issue is
regarding the reliability of the two above stated judgements.
The research is prepared with the reliability of judgements of several supreme
court as well as Allahabad High Court cases and all of them reinstate the fact that
when an alternate remedy is present the writ petition in front of an high court shall
not lie no matter how large the scope is.
Issue (i)
In my opinion based on several judgements of supreme court of india the writ
petition shall not lie in the case of contractual matter herein the supreme court has
repeatedly showed the same view on this topic.
The law also states that contractual matters to be governed by the conditions of the
contract and any issues arising out of the contractual matters shall be dealt with the
remedies provided by the contract or a civil suit of damages shall lie. Nowhere
there is provided that a writ petition of any kind shall be issued.
The only exception in the issue of contractual matters in which a writ petition shall
lie are three exceptions stated below:
(a) the writ petition has been filed for the enforcement of a fundamental right
protected by Part III of the Constitution
(b) there has been a violation of the principles of natural justice
(c) the order or proceedings are wholly without jurisdiction
All these principles have been reinstated by the supreme court and Allahabad high
court with the incoming of cases with respect to writ jurisdiction.
The cases supporting the opinions are as follows:

In Whirlpool Corporation vs Registrar Of Trade Marks, Mumbai &

Ors,1998

Rashid Ahmad vs. Municipal Board, kairana, AIR 1960 SC 163, laid down that
existence of an adequate legal remedy was a factor to be taken into consideration
in the matter of granting Writs. This was followed by another Rashid case, namely,
[Link] & Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC
207 which reiterated the above proposition and held that where alternative remedy
existed, it would be a sound exercise of discretion to refuse to interfere in a petition
under Article 226. This proposition was, however, qualified by the significant
words, "unless there are good grounds therefor", which indicated that alternative
remedy would not operate as an absolute bar and that Writ Petition under Article
226 could still be entertained in exceptional circumstances.

In Harbanslal Sahnia And Anr. vs Indian Oil Corpn. Ltd. And Ors., 2002
So far as the view taken by the High Court that the remedy by way of recourse to
arbitration clause was available to the appellants and therefore the writ petition
filed by the appellants was liable to be dismissed, suffice it to observe that the rule
of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of
discretion and not one of compulsion. In an appropriate case in spite of availability
of the alternative remedy, the High Court may still exercise its writ jurisdiction in
at least three contingencies: (i) where the writ petition seeks enforcement of any of
the Fundamental Rights; (ii) where there is failure of principles of natural justice
or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires
of an Act and is challenged [See Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and Ors., (1998)].
In M/S Radha Krishan Industries vs The State Of Himachal Pradesh, 2021
We shall now review the position of law on the questions before us. C.1
Maintainability of writ petition before the High Court 24 The High Court has dealt
with the maintainability of the petition under Article 226 of the Constitution.
Relying on the decision of this Court in Assistant Commissioner (CT) LTU,
Kakinada and others v Glaxo Smith Kline Consumer Health Care Limited20, the
High Court noted that although it can entertain a petition under Article 226 of the
Constitution, it must not do so when AIR 2020 SC 2819.
PART C the aggrieved person has an effective alternate remedy available in law.
However, certain exceptions to this “rule of alternate remedy” include where, the
statutory authority has not acted in accordance with the provisions of the law or
acted in defiance of the fundamental principles of judicial procedure; or has
resorted to invoke provisions, which are repealed; or where an order has been
passed in violation of the principles of natural justice. Applying this formulation,
the High Court noted that the appellant has an alternate remedy available under the
GST Act and thus, the petition was not maintainable. 25 In this background, it
becomes necessary for this Court, to dwell on the “rule of alternate remedy” and its
judicial exposition. In Whirlpool Corporation v Registrar of Trademarks,
Mumbai21, a two judge Bench of this Court after reviewing the case law on this
point, noted:
“14. The power to issue prerogative writs under Article 226 of the Constitution is
plenary in nature and is not limited by any other provision of the Constitution. This
power can be exercised by the High Court not only for issuing writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the
enforcement of any of the Fundamental Rights contained in Part III of the
Constitution but also for “any other purpose”.
15. Under Article 226 of the Constitution, the High Court, having regard to the
facts of the case, has a discretion to entertain or not to entertain a writ petition. But
the High Court has imposed upon itself certain restrictions one of which is that if
an effective and efficacious remedy is available, the High Court would not
normally exercise its jurisdiction. But the alternative remedy has been consistently
held by this Court not to operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the principle of natural
justice or where the order or proceedings are wholly without jurisdiction or the
vires of an Act is challenged. There is a plethora of case-law on this point but to
cut down this circle of forensic whirlpool, we would rely on (1998) 8 SCC 1
(“Whirlpool”).
PART C some old decisions of the evolutionary era of the constitutional law as
they still hold the field.” (emphasis supplied)
26 Following the dictum of this Court in Whirlpool (supra), in Harbanslal Sahnia v
Indian Oil Corpn. Ltd.22, this court noted that “7. So far as the view taken by the
High Court that the remedy by way of recourse to arbitration clause was available
to the appellants and therefore the writ petition filed by the appellants was liable to
be dismissed is concerned, suffice it to observe that the rule of exclusion of writ
jurisdiction by availability of an alternative remedy is a rule of discretion and not
one of compulsion. In an appropriate case, in spite of availability of the alternative
remedy, the High Court may still exercise its writ jurisdiction in at least three
contingencies: (i) where the writ petition seeks enforcement of any of the
fundamental rights; (ii) where there is failure of principles of natural justice; or (iii)
where the orders or proceedings are wholly without jurisdiction or the vires of an
Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8
SCC 1] .) The present case attracts applicability of the first two contingencies.
Moreover, as noted, the appellants' dealership, which is their bread and butter,
came to be terminated for an irrelevant and non-existent cause. In such
circumstances, we feel that the appellants should have been allowed relief by the
High Court itself instead of driving them to the need of initiating arbitration
proceedings.” (emphasis supplied) 27 The principles of law which emerge are
that :
(i) The power under Article 226 of the Constitution to issue writs can be exercised
not only for the enforcement of fundamental rights, but for any other purpose as
well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the
restrictions placed on the power of the High Court is where an effective alternate
remedy is available to the aggrieved person;
(2003) 2 SCC 107
PART C
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has
been filed for the enforcement of a fundamental right protected by Part III of the
Constitution; (b) there has been a violation of the principles of natural justice; (c)
the order or proceedings are wholly without jurisdiction;
or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers
under Article 226 of the Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an efficacious alternate remedy is
provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or
procedure for enforcing the right or liability, resort must be had to that particular
statutory remedy before invoking the discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory remedies is a rule of policy,
convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide
to decline jurisdiction in a writ petition. However, if the High Court is objectively
of the view that the nature of the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be interfered with.

These above cases provide a base that presence of an alternate remedy places a
near bar at issuance of writs.
In Prashant Shukla vs State Of U.P. And 3 Others, 10 Nov 2021
Thus, the orders of learned Single Judge, which were challenged in the case of
Jagbhan (Supra) and Prem Chandra Gupta (Supra) arose from an ex parte order of
termination of services on the basis of an ex parte enquiry report and the orders of
the learned Single Judge were not on merit of the case, but it was simply observed
that the writ petition is not maintainable in the light of the law laid down in the
case of Rajesh Bhardwaj (Supra).
The facts of the present case are entirely different as the petitioner-appellant herein
entered into a contract voluntarily and with eyes wide open for his engagement for
a fixed period from 2.3.2020 to 31.8.2020 and on expiry of the period of
agreement, his agreement was not renewed and he was not re-engaged.
The writ petition of the petitioner-appellant herein was dismissed by the learned
Single Judge not by merely referring to the law laid down in the case of Rajesh
Bhardwaj (Supra) but it was also held that the Court cannot by way of a writ
command the respondents to either renew or perpetuate the contractual
engagement of the petitioner. In any case and since it is not governed by any
statutory rules or regulations, the Court cannot issue a declaration invalidating the
3termination or direct reinstatement.
It is also well settled law that this Court in exercise of its extraordinary, equitable
and discretionary jurisdiction under Article 226 of the Constitution of India has no
power to re-write contract or to compel the State to enter into an agreement.

Issue (ii)
In my opinion the case of Rajesh Bharadwaj applies to our case as our contract is
neither a statutory contract nor it is a special contract, it is a contract which is
ordinary in nature and is governed by ordinary conditions of the contract.
The issue of the present case to either of which Rajesh Bhardwaj and others Vs.
Union of India and others(2019) OR Prem Chandra Gupta Vs. State of U.P. and 4
others(2021) shall apply is of a real distinction of as to which of the conditions lie
in the present case wherein the contractual obligations and conditions are merely of
ordinary nature and are governed by ordinary law of contract. The present case
contains no special provisions and has no statutory obligations in it.
In the case of Rajesh Bharadwaj the contract was of ordinary nature and had the
similar facts and conditions as present in the current case and the conditions and
obligations were not of statutory or special nature which eventually ruled out the
scope of special contract act and statutory contract application. There are a few
judgements on which my opinion is based and those are listed below:

In Joshi Technologies International Inc vs Union Of India & Ors, SC (2015)

The position thus summarized in the aforesaid principles has to be understood in
the context of discussion that preceded which we have pointed out above. As per
this, no doubt, there is no absolute bar to the maintainability of the writ petition
even in contractual matters or where there are disputed questions of fact or even
when monetary claim is raised. At the same time, discretion lies with the High
Court which under certain circumstances, can refuse to exercise. It also follows
that under the following circumstances, 'normally', the Court would not exercise
such a discretion:

(a) the Court may not examine the issue unless the action has some public law
character attached to it.
(b) Whenever a particular mode of settlement of dispute is provided in the contract,
the High Court would refuse to exercise its discretion under Article 226 of the
Constitution and relegate the party to the said made of settlement, particularly
when settlement of disputes is to be resorted to through the means of arbitration.
(c) If there are very serious disputed questions of fact which are of complex nature
and require oral evidence for their determination.
(d) Money claims per se particularly arising out of contractual obligations are
normally not to be entertained except in exceptional circumstances.

Further legal position which emerges from various judgments of this Court dealing
with different situations/aspects relating to the contracts entered into by the
State/public Authority with private parties, can be summarized as under:

(i) At the stage of entering into a contract, the State acts purely in its executive
capacity and is bound by the obligations of fairness.
(ii) State in its executive capacity, even in the contractual field, is under obligation
to act fairly and cannot practice some discriminations.
(iii) Even in cases where question is of choice or consideration of competing
claims before entering into the field of contract, facts have to be investigated and
found before the question of a violation of Article 14 could arise. If those facts are
disputed and require assessment of evidence the correctness of which can only be
tested satisfactorily by taking detailed evidence, Involving examination and cross-
examination of witnesses, the case could not be conveniently or satisfactorily
decided in proceedings under Article 226 of the Constitution. In such cases court
can direct the aggrieved party to resort to alternate remedy of civil suit etc.
(iv) Writ jurisdiction of High Court under Article 226 was not intended to facilitate
avoidance of obligation voluntarily incurred.
(v) Writ petition was not maintainable to avoid contractual obligation.
Occurrence of commercial difficulty, inconvenience or hardship in performance of
the conditions agreed to in the contract can provide no justification in not
complying with the terms of contract which the parties had accepted with open
eyes. It cannot ever be that a licensee can work out the license if he finds it
profitable to do so: and he can challenge the conditions under which he agreed to
take the license, if he finds it commercially inexpedient to conduct his business.
(vi) Ordinarily, where a breach of contract is complained of, the party complaining
of such breach may sue for specific performance of the contract, if contract is
capable of being specifically performed. Otherwise, the party may sue for
damages.
(vii) Writ can be issued where there is executive action unsupported by law or even
in respect of a corporation there is denial of equality before law or equal protection
of law or if can be shown that action of the public authorities was without giving
any hearing and violation of principles of natural justice after holding that action
could not have been taken without observing principles of natural justice.
(viii) If the contract between private party and the State/instrumentality and/or
agency of State is under the realm of a private law and there is no element of
public law, the normal course for the aggrieved party, is to invoke the remedies
provided under ordinary civil law rather than approaching the High Court under
Article 226 of the Constitutional of India and invoking its extraordinary
jurisdiction.
(ix) The distinction between public law and private law element in the contract
with State is getting blurred. However, it has not been totally obliterated and where
the matter falls purely in private field of contract. This Court has maintained the
position that writ petition is not maintainable. Dichotomy between public law and
private law, rights and remedies would depend on the factual matrix of each case
and the distinction between public law remedies and private law, field cannot be
demarcated with precision. In fact, each case has to be examined, on its facts
whether the contractual relations between the parties bear insignia of public
element. Once on the facts of a particular case it is found that nature of the activity
or controversy involves public law element, then the matter can be examined by
the High Court in writ petitions under Article 226 of the Constitution of India to
see whether action of the State and/or instrumentality or agency of the State is fair,
just and equitable or that relevant factors are taken into consideration and
irrelevant factors have not gone into the decision making process or that the
decision is not arbitrary.
(x) Mere reasonable or legitimate expectation of a citizen, in such a situation, may
not by itself be a distinct enforceable right, but failure to consider and give due
weight to it may render the decision arbitrary, and this is how the requirements of
due consideration of a legitimate expectation forms part of the principle of non-
arbitrariness.
(xi) The scope of judicial review in respect of disputes falling within the domain of
contractual obligations may be more limited and in doubtful cases the parties may
be relegated to adjudication of their rights by resort to remedies provided for
adjudication of purely contractual disputes.

Keeping in mind the aforesaid principles and after considering the arguments of
respective parties, we are of the view that on the facts of the present case, it is not a
fit case where the High Court should have exercised discretionary jurisdiction
under Article 226 of the Constitution. First, the matter is in the realm of pure
contract. It is not a case where any statutory contract is awarded.

In M.P. Power Management Company Limited, Jabalpur Versus M/S. Sky

Power Southeast Solar India Private Limited & Others, SC (2022)
It is, undoubtedly, true that the writ jurisdiction is a public law remedy. A matter,
which lies entirely within a private realm of affairs of public body, may not lend
itself for being dealt with under the writ jurisdiction of the Court. ii. The principle
laid down in Bareilly Development Authority (supra) that in the case of a non-
statutory contract the rights are governed only by the terms of the contract and the
decisions, which are purported to be followed, including Radhakrishna Agarwal
(supra), may not continue to hold good, in the light of what has been laid down in
ABL (supra) and as followed in the recent judgment in Sudhir Kumar Singh
(supra). iii. The mere fact that relief is sought under a contract which is not
statutory, will not entitle the respondent-State in a case by itself to ward-off
scrutiny of its action or inaction under the contract, if the complaining party is able
to establish that the action/ inaction is, per se, arbitrary. iv. An action will lie,
undoubtedly, when the State purports to award any largesse and, undoubtedly, this
relates to the stage prior to the contract being entered into [See R.D. Shetty
(supra)]. This scrutiny, no doubt, would be undertaken within the nature of the
judicial review, which has been declared in the decision in Tata Cellular vs. Union
of India v. After the contract is entered into, there can be a variety of
circumstances, which may provide a cause of action to a party to the contract with
the State, to seek relief by filing a Writ Petition. vi. Without intending to be
exhaustive, it may include the relief of seeking payment of amounts due to the
aggrieved party from the State. The State can, indeed, be called upon to honour its
obligations of making payment, unless it be that there is a serious and genuine
dispute raised relating to the liability of the State to make the payment. Such
dispute, ordinarily, would include the contention that the aggrieved party has not
fulfilled its obligations and the Court finds that such a contention by the State is
not a mere ruse or a pretence. vii. The existence of an alternate remedy, is,
undoubtedly, a matter to be borne in mind in declining relief in a Writ Petition in a
contractual matter. Again, the question as to whether the Writ Petitioner must be
told off the gates, would depend upon the nature of the claim and relief sought by
the petitioner, the questions, which would have to be decided, and, most
importantly, whether there are disputed questions of fact, resolution of which is
necessary, as an indispensable prelude to the grant of the relief sought.
Undoubtedly, while there is no prohibition, in the Writ Court even deciding
disputed questions of fact, particularly when the dispute surrounds demystifying of
documents only, the Court may relegate the party to the remedy by way of a civil
suit. viii. The existence of a provision for arbitration, which is a forum intended to
quicken the pace of dispute resolution, is viewed as a near bar to the entertainment
of a Writ Petition (See in this regard, the view of this Court even in ABL (supra)
explaining how it distinguished the decision of this Court in State of U.P. and
others v. Bridge & Roof Co.27, by its observations in paragraph-14 in ABL
(supra)]. ix. The need to deal with disputed questions of fact, cannot be made a
smokescreen to guillotine a genuine claim raised in a Writ Petition, when actually
the resolution of a disputed question of fact is unnecessary to grant relief to a writ
applicant. x. The reach of Article 14 enables a Writ Court to deal with arbitrary
State action even after a contract is entered into by the State. A wide variety of
circumstances can generate causes of action for invoking Article 14. The Court’s
approach in dealing with the same, would be guided by, undoubtedly, the
overwhelming need to obviate arbitrary State action, in cases where the Writ
remedy provides an effective and fair means of preventing miscarriage of justice
arising from palpably unreasonable action by the State. xi. Termination of contract
can again arise in a wide variety of situations. If for instance, a contract is
terminated, by a person, who is demonstrated, without any need for any argument,
to be the person, who is completely unauthorised to cancel the contract, there may
not be any necessity to drive the party to the unnecessary ordeal of a prolix and
avoidable round of litigation. The intervention by the High Court, in such a case,
where there is no dispute to be resolved, would also be conducive in public
interest, apart from ensuring the Fundamental Right of the petitioner under Article
14 of the Constitution of India. When it comes to a challenge to the termination of
a contract by the State, which is a non-statutory body, which is acting in purported
exercise of the powers/rights under such a contract, it would be over simplifying a
complex issue to lay down any inflexible Rule in favour of the Court turning away
the petitioner to alternate Fora. Ordinarily, the cases of termination of contract by
the State, acting within its contractual domain, may not lend itself for appropriate
redress by the Writ Court. This is, undoubtedly, so if the Court is duty-bound to
arrive at findings, which involve untying knots, which are presented by disputed
questions of facts. Undoubtedly, in view of ABL Limited (supra), if resolving the
dispute, in a case of repudiation of a contract, involves only appreciating the true
scope of documentary material in the light of pleadings, the Court may still grant
relief to an applicant. We must enter a caveat. The Courts are today reeling under
the weight of a docket explosion, which is truly alarming. If a case involves a large
body of documents and the Court is called upon to enter upon findings of facts and
involves merely the construction of the document, it may not be an unsound
discretion to relegate the party to the alternate remedy. This is not to deprive the
Court of its constitutional power as laid down in ABL (supra). It all depends upon
the facts of each case as to whether, having regard to the scope of the dispute to be
resolved, whether the Court will still entertain the petition. xii. In a case the State is
a party to the contract and a breach of a contract is alleged against the State, a civil
action in the appropriate Forum is, undoubtedly, maintainable. But this is not the
end of the matter. Having regard to the position of the State and its duty to act
fairly and to eschew arbitrariness in all its actions, resort to the constitutional
remedy on the cause of action, that the action is arbitrary, is permissible (See in
this regard Kumari Shrilekha Vidyarthi and others v. State of U.P. and others).
However, it must be made clear that every case involving breach of contract by the
State, cannot be dressed up and disguised as a case of arbitrary State action. While
the concept of an arbitrary action or inaction cannot be cribbed or confined to any
immutable mantra, and must be laid bare, with reference to the facts of each case,
it cannot be a mere allegation of breach of contract that would suffice. What must
be involved in the case must be action/inaction, which must be palpably
unreasonable or absolutely irrational and bereft of any principle. An action, which
is completely malafide, can hardly be described as a fair action and may,
depending on the facts, amount to arbitrary action. The question must be posed and
answered by the Court and all we intend to lay down is that there is a discretion
available to the Court to grant relief in appropriate cases. xiii. A lodestar, which
may illumine the path of the Court, would be the dimension of public interest
subserved by the Court interfering in the matter, rather than relegating the matter to
the alternate Forum. xiv. Another relevant criteria is, if the Court has entertained
the matter, then, while it is not tabooed that the Court should not relegate the party
at a later stage, ordinarily, it would be a germane consideration, which may
persuade the Court to complete what it had started, provided it is otherwise a sound
exercise of jurisdiction to decide the matter on merits in the Writ Petition itself. xv.
Violation of natural justice has been recognised as a ground signifying the
presence of a public law element and can found a cause of action premised on
breach of Article 14. [See Sudhir Kumar Singh and Others (supra)].

The above cases shall form a good position of the application of simple contract
laws and shall be directed towards the remedy available in the contract.

One more issue that I would like to throw light on is the issue of undue and long
delay in the present case.
The present case has been filed after a long and undue delay which has been a
premise for the non-maintainability of a writ petition. There have been many
judgements which clearly set out the precedent of a reasonable period of time for
filing a writ and after a long and unreasonable delay the writ becomes non-
maintainable.
In State Of U.P.& Ors vs Arvind Kumar Srivastava & Ors, SC 2014
Viewed from this angle, in the present case, we find that the selection process took
place in the year 1986. Appointment orders were issued in the year 1987, but were
also cancelled vide orders dated June 22, 1987. The respondents before us did not
chalelnge these cancelleation orders till the year 1996, i.e. for a period of 9 years. It
means that they had accepted the cancellation of their appointments. They woke up
in the year 1996 only after finding that some other persons whose appointment
orders were also cancelled got the relief. By that time, nine years had passed. The
earlier judgment had granted the relief to the parties before the Court. It would also
be pertinent to highlight that these respondents have not joined the service nor
working like the employees who succeeded in earlier case before the Tribunal. As
of today, 27 years have passed after the issuance of cancellation orders. Therefore,
not only there was unexplained delay and laches in filing the claim petition after
period of 9 years, it would be totally unjust to direct the appointment to give them
the appointment as of today, i.e. after a period of 27 years when most of these
respondents would be almost 50 years of age or above.