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TMI Blog2020 (1) TMI 1483X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal; (b) the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same manner as in the case of an application made under subsection (2) of section 14, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit. 6. A Division Bench of the Allahabad High Court in Union of India and others vs. Ram Baran Special Appeal Defective No. 445 of 2005 held that the phrase other proceedings in Section 34 of the Act would include all appeals including Letters Patent Appeals (hereinafter referred to as LPAs). It was held that since the Tribunal is a substitute of the High Court, the Tribunal could decide an appeal against the order of a single judge which was required to be transferred to the Tribunal. 7. We may point out that after the enactment of the Uttar Pradesh High Court (Abolition of Letters Patent Appeals) Act, 1962 Letters Patents are no longer applicable to the High Court of Allahabad. However, Special Appeals are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here 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 the High Court. 11. While holding so, we place reliance upon a judgment of a Constitution Bench of this Court in L. Chandra Kumar vs. Union of India Ors. (1997) 3 SCC 261. This court clearly held that 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 relevant portion of the judgment reads as follows: 78. An analysis of the manner in which the Framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided. The aforesaid observations in L. Chandra Kumar (supra) leave no manner of doubt that 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. 12. In L. Chandra Kumar (supra) this Court while dealing with the issue of exclusion of the power of judicial review held that such power cannot be excluded by legislation or constitutional amendment. The relevant portion of the judgment reads as follows: 90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no followup action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Court s writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. xxx xxx xxx 93. Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 13. Reliance placed by Ms. Dwivedi on the judgment of this Court in Major General Shri Kant Sharma (supra) is entirely misplaced. The issue before this Court in this case was whether the High Court was justified in entertaining writ petitions against the orders of the AFT. This is a judgment by two judges and obviously it cannot overrule the judgment of the Constitution Bench in L. Chandra Kumar (supra). The Division Bench, after referring to various judgments including the judgment in L. Chandra Kumar (supra), summarised its findings in para 36 as follows: 36. The afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive remedy available Union of India vs. T.R. Varma AIR 1957 SC 882. 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 Non Commissioned 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 which is not the law laid down in L. Chandra Kumar (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, we reject the contention that an intra court appeal from the judgment of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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