Balkrishna Ram vs Union of India and Anr.

HELD : 1.1 Section 14(1) of the Armed Forces Tribunal Act, 2007 clearly provides that the Armed Forces Tribunal (AFT) will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India. Section 34 is very carefully worded. It states that ‘every suit’, or ‘other proceedings’ pending before any court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the AFT with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution. There can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the AFT. True it is, that since an appeal lies to the Supreme Court against an order of the AFT, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of AFT. [Para 10][587-F-G; 588-A-B]

1.2 Judicial review is a part of the basic structure of the Constitution and the power of judicial review vested in the High Courts and the Supreme Court cannot be taken away. The power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the Constitution. [Para 11][588-C; 589-E]

1.3 The principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available. The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a NonCommissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions. [Para 14][593-G-H; 594-A-D]

1.4 It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the Tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court. [Para 15][594-F]

1.5 The contention of the appellant, if accepted, would strike at the very root of judicial independence and make the High Court subordinate to the AFT. This can never be the intention of the Legislature. The High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. It is obvious that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within the High Courts where a judgment rendered by a Single Judge may be subject to challenge before a Division Bench. This appeal to the Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies, the appeal is heard by two or more judges of the High Court. The Court cannot envisage a situation where an appeal against the order of a sitting Judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. Therefore, an intra court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is not required to be transferred under Section 34 of the Act. [Para 17][595-D-H] L Chandra Kumar v. Union of India & Ors. (1997) 3 SCC 261 : [1997] 2 SCR 1186 ; Rojer Mathew v. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615

– followed.

Union of India and Others v. Major General Shri Kant Sharma and Another (2015) 6 SCC 773 : [2015] 4 SCR 676 – held inapplicable.

Union of India v. T.R. Varma AIR 1957 SC 882 : [1958] SCR 499 – referred to.

2. The appellant could not clear the aptitude test. It has been urged that even if he could not clear the aptitude test, he should have been considered for appointment in some other post before being discharged from service. It is also urged that in the order of discharge it is not indicated that the case of the appellant was considered for such alternative service. It is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, it is found that before discharge, the name of the appellant was considered for two categories but the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment. In this view of the matter, there is no merit in the appeal. [Paras 18 and 19][596-A-C]