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 and Whether the AFT is supervisory jurisdiction over the High Court ?
Section 34 of the Act reads as follows:
“34. Transfer of pending cases.—(1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of
the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen
after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under subsection (1),—
(a) the court 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.”
Section 14(1) of the Act quoted hereinabove clearly provides that the 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. We are not going into the question as to whether the Tribunal is amenable to the supervisory jurisdiction of a High Court under Article 227 of the Constitution but 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 the High Court.
The contention of the learned counsel for 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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.131/2020
(@ Special Leave Petition (Civil) No. 6999 of 2017)
BALKRISHNA RAM …APPELLANT(S)
Versus
UNION OF INDIA AND ANR. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. One of the issues raised in this appeal is 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.
2
3. The Armed Forces Tribunal (AFT for short) was constituted
under the Armed Forces Tribunal Act, 2007 (hereinafter referred
to as the Act), enacted with the purpose of constituting an AFT to
adjudicate disputes and complaints of personnel belonging to the
Armed Forces. Chapter III of the Act, deals with the jurisdiction,
power and authority of the Tribunal. Section 14(1) of the Act
which is relevant reads as follows:
“14. Jurisdiction, powers and authority in service matters.
—(1) Save as otherwise expressly provided in this Act, the
Tribunal shall exercise, on and from the appointed day, all the
jurisdiction, powers and authority, exercisable immediately
before that day by all courts (except the Supreme Court or a
High Court exercising jurisdiction under articles 226 and 227
of the Constitution) in relation to all service matters.”
4. Section 15 provides that the Tribunal shall exercise
jurisdiction, power and authority in relation to an appeal against
any order, decision, finding or sentence passed by a court
martial.
5. Section 34 of the Act reads as follows:
“34. Transfer of pending cases.—(1) Every suit, or other
proceeding pending before any court including a High Court or
other authority immediately before the date of establishment of
the Tribunal under this Act, being a suit or proceeding the
cause of action whereon it is based, is such that it would have
been within the jurisdiction of the Tribunal, if it had arisen
after such establishment within the jurisdiction of such
Tribunal, stand transferred on that date to such Tribunal.
3
(2) Where any suit, or other proceeding stands transferred
from any court including a High Court or other authority to
the Tribunal under subsection (1),—
(a) the court 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 Baran1 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 provided against the
judgment of a single judge to a Division Bench. The High Court
1 Special Appeal Defective No. 445 of 2005
4
held that the term ‘other proceedings’ include all such intracourt appeals.
8. This view was doubted by another Division Bench of the
Allahabad High Court in W Ex Sigman Nand Kishore Sahoo
vs. Chief of Army Staff 2
. Thereafter, the matter was referred
to a Full Bench in the said case and the Full Bench by a
majority held as follows:
“In view of the foregoing discussions, we are of the considered
opinion that the special appeal filed under Chapter VIII Rule 5
of the Allahabad High Court Rules, 1952 against the judgment
and order of the learned Single Judge pending adjudication
immediately prior to the constitution of the Armed Forces
Tribunal is not liable to be transferred to the Tribunal and the
decision rendered by the division Bench in Ram Baran (Supra)
does not lay down the correct law.”
9. Ms. Preetika Dwivedi, learned counsel for the appellant
submits that the view of the Allahabad High Court is incorrect.
She contends that it has been held by this Court in a number of
decisions including Union of India And Others vs. Major
General Shri Kant Sharma And Another3
that the AFT
exercises all the powers of the High Court. She submits that it
virtually substitutes the High Court in so far as matters governed
by the Act are concerned, and as such an LPA or Special Appeal
2 2012 (1) ESC 386 (All); Special Appeal (Defective) No.610 of 2002
3 (2015) 6 SCC 773
5
against the judgment of a single judge is also required to be
transferred to the AFT.
10. We are not at all in agreement with this submission.
Section 14(1) of the Act quoted hereinabove clearly provides that
the 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. We are not going into the
question as to whether the Tribunal is amenable to the
supervisory jurisdiction of a High Court under Article 227 of the
Constitution but 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
6
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.
4
. 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
the judiciary. These attempts were directed at ensuring
that the judiciary would be capable of effectively
discharging its wide powers of judicial review. While the
Constitution confers the power to strike down laws upon
the High Courts and the Supreme Court, it also contains
elaborate provisions dealing with the tenure, salaries,
allowances, retirement age of Judges as well as the
mechanism for selecting Judges to the superior courts.
The inclusion of such elaborate provisions appears to
have been occasioned by the belief that, armed by such
provisions, the superior courts would be insulated from
any executive or legislative attempts to interfere with the
making of their decisions. The Judges of the superior
courts have been entrusted with the task of upholding
the Constitution and to this end, have been conferred the
4 (1997) 3 SCC 261
7
power to interpret it. It is they who have to ensure that
the balance of power envisaged by the Constitution is
maintained and that the legislature and the executive do
not, in the discharge of their functions, transgress
constitutional limitations. It is equally their duty to
oversee that the judicial decisions rendered by those who
man the subordinate courts and tribunals do not fall foul
of strict standards of legal correctness and judicial
independence. The constitutional safeguards which
ensure the independence of the Judges of the superior
judiciary, are not available to the Judges of the
subordinate judiciary or to those who man tribunals
created by ordinary legislations. Consequently, Judges of
the latter category can never be considered full and
effective substitutes for the superior judiciary in
discharging the function of constitutional interpretation.
We, therefore, hold that the power of judicial review over
legislative action vested in the High Courts under Article
226 and in this Court under Article 32 of the
Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the
Supreme Court to test the constitutional validity of
legislations can never be ousted or excluded.
79. We also hold that the power vested in the High
Courts to exercise judicial superintendence over the
decisions of all courts and tribunals within their
respective jurisdictions is also part of the basic structure
of the Constitution. This is because a situation 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
8
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 ourselves to agree to this
proposition as that may result in splitting up proceedings and
may cause avoidable delay. If such a view were to be adopted,
it would be open for litigants to raise constitutional issues,
many of which may be quite frivolous, to directly approach the
High Courts and thus subvert the jurisdiction of the Tribunals.
Moreover, even in these special branches of law, some areas do
involve the consideration of constitutional questions on a
regular basis; for instance, in service law matters, a large
majority of cases involve an interpretation of Articles 14, 15
and 16 of the Constitution. To hold that the Tribunals have no
power to handle matters involving constitutional issues would
not serve the purpose for which they were constituted. On the
other hand, to hold that all such decisions will be subject to
the jurisdiction of the High Courts under Articles 226/227 of
the Constitution before a Division Bench of the High Court
within whose territorial jurisdiction the Tribunal concerned
falls will serve two purposes. While saving the power of judicial
review of legislative action vested in the High Courts under
Articles 226/227 of the Constitution, it will ensure that
frivolous claims are filtered out through the process of
adjudication in the Tribunal. The High Court will also have the
benefit of a reasoned decision on merits which will be of use to
it in finally deciding the matter.
91. It has also been contended before us that even in
dealing with cases which are properly before the Tribunals, the
manner in which justice is dispensed by them leaves much to
be desired. Moreover, the remedy provided in the parent
statutes, by way of an appeal by special leave under Article
136 of the Constitution, is too costly and inaccessible for it to
be real and effective. Furthermore, the result of providing such
a remedy is that the docket of the Supreme Court is crowded
with decisions of Tribunals that are challenged on relatively
trivial grounds and it is forced to perform the role of a first
appellate court. We have already emphasised the necessity for
ensuring that the High Courts are able to exercise judicial
9
superintendence over the decisions of the Tribunals under
Article 227 of the Constitution. In R.K. Jain case, after taking
note of these facts, it was suggested that the possibility of an
appeal from the Tribunal on questions of law to a Division
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 the respective High Courts.
The Tribunals will consequently also have the power to test the
vires of subordinate legislations and rules. However, this
power of the Tribunals will be subject to one important
exception. The Tribunals shall not entertain any question
regarding the vires of their parent statutes following the settled
principle that a Tribunal which is a creature of an Act cannot
declare that very Act to be unconstitutional. In such cases
alone, the High Court concerned may be approached directly.
All other decisions of these Tribunals, rendered in cases that
they are specifically empowered to adjudicate upon by virtue of
their parent statutes, will also be subject to scrutiny before a
Division Bench of their respective High Courts. We may add
that the Tribunals will, however, continue to act as the only
courts of first instance in respect of the areas of law for which
they have been constituted. By this, we mean that it will not
be open for litigants to directly approach the High Courts even
in cases where they question the vires of statutory legislations
(except, as mentioned, where the legislation which creates the
particular Tribunal is challenged) by overlooking the
jurisdiction of the Tribunal concerned.
xxx xxx xxx
10
99. In view of the reasoning adopted by us, we hold that
clause 2(d) of Article 323A and clause 3(d) of Article 323B, to
the extent they exclude the jurisdiction of the High Courts and
the Supreme Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. Section 28 of the Act and
the “exclusion of jurisdiction” clauses in all other legislations
enacted under the aegis of Articles 323A and 323B would, to
the same extent, be unconstitutional. The jurisdiction
conferred upon the High Courts under Articles 226/227 and
upon the Supreme Court under Article 32 of the Constitution
is a part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in discharging the
powers conferred by Articles 226/227 and 32 of the
Constitution. The Tribunals created under Article 323A and
Article 323B of the Constitution are possessed of the
competence to test the constitutional validity of statutory
provisions and rules. All decisions of these Tribunals will,
however, be subject to scrutiny before a Division Bench of the
High Court 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.
11
Chandra Kumar (supra), summarised its findings in para 36 as
follows:
“36. The aforesaid decisions rendered by this Court
can be summarised as follows:
(i) The power of judicial review vested in the High
Court under Article 226 is one of the basic essential
features of the Constitution and any legislation including
the Armed Forces Tribunal Act, 2007 cannot override or
curtail jurisdiction of the High Court under Article 226 of
the Constitution of India
(ii) The jurisdiction of the High Court under Article
226 and this Court under Article 32 though cannot be
circumscribed by the provisions of any enactment, they
will certainly have due regard to the legislative intent
evidenced by the provisions of the Acts and would
exercise their jurisdiction consistent with the provisions
of the Act.
(iii) When a statutory forum is created by law for
redressal of grievances, a writ petition should not be
entertained ignoring the statutory dispensation.
(iv) The High Court will not entertain a petition under
Article 226 of the Constitution if an effective alternative
remedy is available to the aggrieved person or the statute
under which the action complained of has been taken
itself contains a mechanism for redressal of grievance.”
What this Court held was that though the power of the High
Court under Article 226 of the Constitution is a basic essential
feature of the Constitution which cannot be taken away, the High
Court should not entertain a petition under Article 226 of the
Constitution if any other effective alternative remedy is available
to the aggrieved person or the statute, under which the action
complained of has been taken, itself contains a maxim for
12
redressal of grievance. We have our doubt, with regard to the
correctness of the directions (iii) & (iv) of the judgment, since in
our opinion it runs counter to the judgment rendered by the
Constitution Bench.
14. It would be pertinent to add that 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 available5
. 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
5 Union of India vs. T.R. Varma AIR 1957 SC 882
13
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 which is not the law laid down in L. Chandra
Kumar (supra).
15. Ms. Dwivedi, placed reliance on the observations made in
Major General Shri Kant Sharma (supra) that, “jurisdiction of
the Tribunal constituted under the Armed Forces Tribunal Act is
in substitution of the jurisdiction of the civil court and the High
Court so far as it relates to suit relating to condition of service of
the persons”, subject to the provisions of the Act. It is clear that
the intention of the court was not to hold that the tribunal is a
substitute of the High Court in so far as its writ jurisdiction is
14
concerned because that is specifically excluded under Section
14(1) of the Act. We cannot read this one sentence out of context.
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.
16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors.6
the Constitution Bench of this Court, of which one of us (Deepak
Gupta, J. was a member), clearly held that though these
tribunals may be manned by retired judges of High Courts and
Supreme Court, including those established under Articles 323A
and 323B of the Constitution, they cannot seek equivalence with
the High Court or the Supreme Court. The following observations
are relevant:
“194. Furthermore, that even though manned by
retired judges of High Courts and the Supreme Court,
such Tribunals established under Article 323A and 323
B of the Constitution cannot seek equivalence with High
Court or the Supreme Court. Once a judge of a High
Court or Supreme Court has retired and he / she no
longer enjoys the Constitutional status, the statutory
position occupied by him / her cannot be equated with
the previous position as a High Court or a Supreme
Court judge. The rank, dignity and position of
Constitutional judges is hence sui generis and arise not
6 2019 (15) SCALE 615
15
merely by their position in the Warrant of Precedence or
the salary and perquisites they draw, but as a result of
the Constitutional trust accorded in them.
Indiscriminate accordance of status of such
Constitutional judges on Tribunal members and
presiding officers will do violence to the very
Constitutional Scheme.”
17. The contention of the learned counsel for 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 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
16
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 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.
18. As far as the merits of the case are concerned, 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.
19. In our view, it is not necessary to indicate in the order of
discharge whether such consideration took place or not. From
the records of the case, we find that 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. In this view of the matter, we find no merit in the
17
appeal, and hence it is dismissed. Pending application(s) if any,
stand(s) disposed of.
………………………………….J.
(DEEPAK GUPTA)
………………………………….J.
(ANIRUDDHA BOSE)
New Delhi
January 09, 2020
Section 34 of the Act reads as follows:
“34. Transfer of pending cases.—(1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of
the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen
after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under subsection (1),—
(a) the court 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.”
Section 14(1) of the Act quoted hereinabove clearly provides that the 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. We are not going into the question as to whether the Tribunal is amenable to the supervisory jurisdiction of a High Court under Article 227 of the Constitution but 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 the High Court.
The contention of the learned counsel for 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.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.131/2020
(@ Special Leave Petition (Civil) No. 6999 of 2017)
BALKRISHNA RAM …APPELLANT(S)
Versus
UNION OF INDIA AND ANR. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. One of the issues raised in this appeal is 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.
2
3. The Armed Forces Tribunal (AFT for short) was constituted
under the Armed Forces Tribunal Act, 2007 (hereinafter referred
to as the Act), enacted with the purpose of constituting an AFT to
adjudicate disputes and complaints of personnel belonging to the
Armed Forces. Chapter III of the Act, deals with the jurisdiction,
power and authority of the Tribunal. Section 14(1) of the Act
which is relevant reads as follows:
“14. Jurisdiction, powers and authority in service matters.
—(1) Save as otherwise expressly provided in this Act, the
Tribunal shall exercise, on and from the appointed day, all the
jurisdiction, powers and authority, exercisable immediately
before that day by all courts (except the Supreme Court or a
High Court exercising jurisdiction under articles 226 and 227
of the Constitution) in relation to all service matters.”
4. Section 15 provides that the Tribunal shall exercise
jurisdiction, power and authority in relation to an appeal against
any order, decision, finding or sentence passed by a court
martial.
5. Section 34 of the Act reads as follows:
“34. Transfer of pending cases.—(1) Every suit, or other
proceeding pending before any court including a High Court or
other authority immediately before the date of establishment of
the Tribunal under this Act, being a suit or proceeding the
cause of action whereon it is based, is such that it would have
been within the jurisdiction of the Tribunal, if it had arisen
after such establishment within the jurisdiction of such
Tribunal, stand transferred on that date to such Tribunal.
3
(2) Where any suit, or other proceeding stands transferred
from any court including a High Court or other authority to
the Tribunal under subsection (1),—
(a) the court 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 Baran1 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 provided against the
judgment of a single judge to a Division Bench. The High Court
1 Special Appeal Defective No. 445 of 2005
4
held that the term ‘other proceedings’ include all such intracourt appeals.
8. This view was doubted by another Division Bench of the
Allahabad High Court in W Ex Sigman Nand Kishore Sahoo
vs. Chief of Army Staff 2
. Thereafter, the matter was referred
to a Full Bench in the said case and the Full Bench by a
majority held as follows:
“In view of the foregoing discussions, we are of the considered
opinion that the special appeal filed under Chapter VIII Rule 5
of the Allahabad High Court Rules, 1952 against the judgment
and order of the learned Single Judge pending adjudication
immediately prior to the constitution of the Armed Forces
Tribunal is not liable to be transferred to the Tribunal and the
decision rendered by the division Bench in Ram Baran (Supra)
does not lay down the correct law.”
9. Ms. Preetika Dwivedi, learned counsel for the appellant
submits that the view of the Allahabad High Court is incorrect.
She contends that it has been held by this Court in a number of
decisions including Union of India And Others vs. Major
General Shri Kant Sharma And Another3
that the AFT
exercises all the powers of the High Court. She submits that it
virtually substitutes the High Court in so far as matters governed
by the Act are concerned, and as such an LPA or Special Appeal
2 2012 (1) ESC 386 (All); Special Appeal (Defective) No.610 of 2002
3 (2015) 6 SCC 773
5
against the judgment of a single judge is also required to be
transferred to the AFT.
10. We are not at all in agreement with this submission.
Section 14(1) of the Act quoted hereinabove clearly provides that
the 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. We are not going into the
question as to whether the Tribunal is amenable to the
supervisory jurisdiction of a High Court under Article 227 of the
Constitution but 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
6
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.
4
. 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
the judiciary. These attempts were directed at ensuring
that the judiciary would be capable of effectively
discharging its wide powers of judicial review. While the
Constitution confers the power to strike down laws upon
the High Courts and the Supreme Court, it also contains
elaborate provisions dealing with the tenure, salaries,
allowances, retirement age of Judges as well as the
mechanism for selecting Judges to the superior courts.
The inclusion of such elaborate provisions appears to
have been occasioned by the belief that, armed by such
provisions, the superior courts would be insulated from
any executive or legislative attempts to interfere with the
making of their decisions. The Judges of the superior
courts have been entrusted with the task of upholding
the Constitution and to this end, have been conferred the
4 (1997) 3 SCC 261
7
power to interpret it. It is they who have to ensure that
the balance of power envisaged by the Constitution is
maintained and that the legislature and the executive do
not, in the discharge of their functions, transgress
constitutional limitations. It is equally their duty to
oversee that the judicial decisions rendered by those who
man the subordinate courts and tribunals do not fall foul
of strict standards of legal correctness and judicial
independence. The constitutional safeguards which
ensure the independence of the Judges of the superior
judiciary, are not available to the Judges of the
subordinate judiciary or to those who man tribunals
created by ordinary legislations. Consequently, Judges of
the latter category can never be considered full and
effective substitutes for the superior judiciary in
discharging the function of constitutional interpretation.
We, therefore, hold that the power of judicial review over
legislative action vested in the High Courts under Article
226 and in this Court under Article 32 of the
Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the
Supreme Court to test the constitutional validity of
legislations can never be ousted or excluded.
79. We also hold that the power vested in the High
Courts to exercise judicial superintendence over the
decisions of all courts and tribunals within their
respective jurisdictions is also part of the basic structure
of the Constitution. This is because a situation 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
8
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 ourselves to agree to this
proposition as that may result in splitting up proceedings and
may cause avoidable delay. If such a view were to be adopted,
it would be open for litigants to raise constitutional issues,
many of which may be quite frivolous, to directly approach the
High Courts and thus subvert the jurisdiction of the Tribunals.
Moreover, even in these special branches of law, some areas do
involve the consideration of constitutional questions on a
regular basis; for instance, in service law matters, a large
majority of cases involve an interpretation of Articles 14, 15
and 16 of the Constitution. To hold that the Tribunals have no
power to handle matters involving constitutional issues would
not serve the purpose for which they were constituted. On the
other hand, to hold that all such decisions will be subject to
the jurisdiction of the High Courts under Articles 226/227 of
the Constitution before a Division Bench of the High Court
within whose territorial jurisdiction the Tribunal concerned
falls will serve two purposes. While saving the power of judicial
review of legislative action vested in the High Courts under
Articles 226/227 of the Constitution, it will ensure that
frivolous claims are filtered out through the process of
adjudication in the Tribunal. The High Court will also have the
benefit of a reasoned decision on merits which will be of use to
it in finally deciding the matter.
91. It has also been contended before us that even in
dealing with cases which are properly before the Tribunals, the
manner in which justice is dispensed by them leaves much to
be desired. Moreover, the remedy provided in the parent
statutes, by way of an appeal by special leave under Article
136 of the Constitution, is too costly and inaccessible for it to
be real and effective. Furthermore, the result of providing such
a remedy is that the docket of the Supreme Court is crowded
with decisions of Tribunals that are challenged on relatively
trivial grounds and it is forced to perform the role of a first
appellate court. We have already emphasised the necessity for
ensuring that the High Courts are able to exercise judicial
9
superintendence over the decisions of the Tribunals under
Article 227 of the Constitution. In R.K. Jain case, after taking
note of these facts, it was suggested that the possibility of an
appeal from the Tribunal on questions of law to a Division
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 the respective High Courts.
The Tribunals will consequently also have the power to test the
vires of subordinate legislations and rules. However, this
power of the Tribunals will be subject to one important
exception. The Tribunals shall not entertain any question
regarding the vires of their parent statutes following the settled
principle that a Tribunal which is a creature of an Act cannot
declare that very Act to be unconstitutional. In such cases
alone, the High Court concerned may be approached directly.
All other decisions of these Tribunals, rendered in cases that
they are specifically empowered to adjudicate upon by virtue of
their parent statutes, will also be subject to scrutiny before a
Division Bench of their respective High Courts. We may add
that the Tribunals will, however, continue to act as the only
courts of first instance in respect of the areas of law for which
they have been constituted. By this, we mean that it will not
be open for litigants to directly approach the High Courts even
in cases where they question the vires of statutory legislations
(except, as mentioned, where the legislation which creates the
particular Tribunal is challenged) by overlooking the
jurisdiction of the Tribunal concerned.
xxx xxx xxx
10
99. In view of the reasoning adopted by us, we hold that
clause 2(d) of Article 323A and clause 3(d) of Article 323B, to
the extent they exclude the jurisdiction of the High Courts and
the Supreme Court under Articles 226/227 and 32 of the
Constitution, are unconstitutional. Section 28 of the Act and
the “exclusion of jurisdiction” clauses in all other legislations
enacted under the aegis of Articles 323A and 323B would, to
the same extent, be unconstitutional. The jurisdiction
conferred upon the High Courts under Articles 226/227 and
upon the Supreme Court under Article 32 of the Constitution
is a part of the inviolable basic structure of our Constitution.
While this jurisdiction cannot be ousted, other courts and
Tribunals may perform a supplemental role in discharging the
powers conferred by Articles 226/227 and 32 of the
Constitution. The Tribunals created under Article 323A and
Article 323B of the Constitution are possessed of the
competence to test the constitutional validity of statutory
provisions and rules. All decisions of these Tribunals will,
however, be subject to scrutiny before a Division Bench of the
High Court 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.
11
Chandra Kumar (supra), summarised its findings in para 36 as
follows:
“36. The aforesaid decisions rendered by this Court
can be summarised as follows:
(i) The power of judicial review vested in the High
Court under Article 226 is one of the basic essential
features of the Constitution and any legislation including
the Armed Forces Tribunal Act, 2007 cannot override or
curtail jurisdiction of the High Court under Article 226 of
the Constitution of India
(ii) The jurisdiction of the High Court under Article
226 and this Court under Article 32 though cannot be
circumscribed by the provisions of any enactment, they
will certainly have due regard to the legislative intent
evidenced by the provisions of the Acts and would
exercise their jurisdiction consistent with the provisions
of the Act.
(iii) When a statutory forum is created by law for
redressal of grievances, a writ petition should not be
entertained ignoring the statutory dispensation.
(iv) The High Court will not entertain a petition under
Article 226 of the Constitution if an effective alternative
remedy is available to the aggrieved person or the statute
under which the action complained of has been taken
itself contains a mechanism for redressal of grievance.”
What this Court held was that though the power of the High
Court under Article 226 of the Constitution is a basic essential
feature of the Constitution which cannot be taken away, the High
Court should not entertain a petition under Article 226 of the
Constitution if any other effective alternative remedy is available
to the aggrieved person or the statute, under which the action
complained of has been taken, itself contains a maxim for
12
redressal of grievance. We have our doubt, with regard to the
correctness of the directions (iii) & (iv) of the judgment, since in
our opinion it runs counter to the judgment rendered by the
Constitution Bench.
14. It would be pertinent to add that 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 available5
. 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
5 Union of India vs. T.R. Varma AIR 1957 SC 882
13
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 which is not the law laid down in L. Chandra
Kumar (supra).
15. Ms. Dwivedi, placed reliance on the observations made in
Major General Shri Kant Sharma (supra) that, “jurisdiction of
the Tribunal constituted under the Armed Forces Tribunal Act is
in substitution of the jurisdiction of the civil court and the High
Court so far as it relates to suit relating to condition of service of
the persons”, subject to the provisions of the Act. It is clear that
the intention of the court was not to hold that the tribunal is a
substitute of the High Court in so far as its writ jurisdiction is
14
concerned because that is specifically excluded under Section
14(1) of the Act. We cannot read this one sentence out of context.
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.
16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors.6
the Constitution Bench of this Court, of which one of us (Deepak
Gupta, J. was a member), clearly held that though these
tribunals may be manned by retired judges of High Courts and
Supreme Court, including those established under Articles 323A
and 323B of the Constitution, they cannot seek equivalence with
the High Court or the Supreme Court. The following observations
are relevant:
“194. Furthermore, that even though manned by
retired judges of High Courts and the Supreme Court,
such Tribunals established under Article 323A and 323
B of the Constitution cannot seek equivalence with High
Court or the Supreme Court. Once a judge of a High
Court or Supreme Court has retired and he / she no
longer enjoys the Constitutional status, the statutory
position occupied by him / her cannot be equated with
the previous position as a High Court or a Supreme
Court judge. The rank, dignity and position of
Constitutional judges is hence sui generis and arise not
6 2019 (15) SCALE 615
15
merely by their position in the Warrant of Precedence or
the salary and perquisites they draw, but as a result of
the Constitutional trust accorded in them.
Indiscriminate accordance of status of such
Constitutional judges on Tribunal members and
presiding officers will do violence to the very
Constitutional Scheme.”
17. The contention of the learned counsel for 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 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
16
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 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.
18. As far as the merits of the case are concerned, 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.
19. In our view, it is not necessary to indicate in the order of
discharge whether such consideration took place or not. From
the records of the case, we find that 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. In this view of the matter, we find no merit in the
17
appeal, and hence it is dismissed. Pending application(s) if any,
stand(s) disposed of.
………………………………….J.
(DEEPAK GUPTA)
………………………………….J.
(ANIRUDDHA BOSE)
New Delhi
January 09, 2020
