2020 (1) TMI 1483 - SC - Indian Laws

Appropriate Jurisdiction to decide an issue - case related to an Armed Forces personnel - whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court? HELD THAT - 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 intracourt 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. We 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, the contention that, 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 required to be transferred under Section 34 of the Act, is rejected. Merits of the case - HELD THAT - The undisputed fact is that 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. Before discharge, the name of the appellant was considered for two categories but unfortunately 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 - Appeal dismissed.

Summary

Issues Involved:
1. Jurisdiction of the Armed Forces Tribunal (AFT) versus High Court in service matters.
2. Transfer of pending cases to the AFT.
3. Judicial review powers of High Courts and the Supreme Court.
4. Applicability of writ jurisdiction under Articles 226 and 227 of the Constitution.
5. Merits of the appellant’s case regarding discharge from service.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the Armed Forces Tribunal (AFT) versus High Court in service matters:
The primary issue was whether an appeal against an order of a single judge of a High Court related to Armed Forces personnel should be transferred to the AFT or heard by the High Court. The AFT, established under the Armed Forces Tribunal Act, 2007, is empowered to adjudicate disputes and complaints of Armed Forces personnel. Section 14(1) of the Act specifies that the AFT exercises jurisdiction over service matters except for the Supreme Court or a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution.

2. Transfer of pending cases to the AFT:
Section 34 of the Act mandates that suits or proceedings pending before any court, including a High Court, before the establishment of the AFT should be transferred to the Tribunal if they fall within its jurisdiction. However, the High Court of Allahabad had conflicting views on whether intra-court appeals (Special Appeals) should be transferred to the AFT. A Division Bench initially held that such appeals should be transferred, but a Full Bench later overruled this, stating that special appeals pending adjudication before the constitution of the AFT are not liable to be transferred.

3. Judicial review powers of High Courts and the Supreme Court:
The judgment emphasized that judicial review is a part of the basic structure of the Constitution, as held in L. Chandra Kumar vs. Union of India. The High Courts and the Supreme Court retain the power of judicial review, and this cannot be taken away by any legislation or constitutional amendment. The AFT cannot substitute the High Court's writ jurisdiction under Articles 226 and 227.

4. Applicability of writ jurisdiction under Articles 226 and 227 of the Constitution:
The Supreme Court clarified that the High Court’s writ jurisdiction under Articles 226 and 227 remains intact even concerning orders passed by the AFT. Although the High Court may refrain from exercising this jurisdiction if an effective alternative remedy is available, this is a rule of prudence, not of law. The High Court can still exercise its writ jurisdiction in cases of glaring illegality or where the alternative remedy is not efficacious.

5. Merits of the appellant’s case regarding discharge from service:
On the merits, the appellant's contention was that he should have been considered for an alternative post before discharge since he failed the aptitude test. The Court found that the appellant’s case was indeed considered for two categories, but he did not meet the height criteria for either post. Thus, the discharge was justified, and the appeal was dismissed.

Conclusion:
The Supreme Court held that the AFT does not have the jurisdiction to hear intra-court appeals from the High Court. The High Court retains its writ jurisdiction under Articles 226 and 227, which is part of the Constitution's basic structure. The appellant's discharge from service was upheld as proper consideration for alternative posts was given. The appeal was dismissed, and any pending applications were disposed of.