Vishnukrishnan Namboodiri v. P. N. Kripal — 1951 DIGILAW 41 (KER)

Judgment :- In all these 9 petitions the questions raised and the relief claimed are substantially the same. The petitioners are officers attached to the Travancore-Cochin State Forces stationed at Trivandrum. They were originally enrolled as Officers of the Travancore Nayar Brigade as per the Brigade Standing Orders issued under the Nayar Brigade Act, Act VI of 1079 of Travancore; and by virtue of the Commission granted to them they are holding their respective positions in the Travancore-Cochin State Forces. The petitioners in O.P. No. 15/51 and 16/51 are occupying the rank as Captains, while all the other petitioners are occupying the rank as Majors in the State Forces. With the formation of the Travancore-Cochin State as per the Covenant entered into by the Rulers of Travancore and Cochin with the concurrence of the Government of India on 1.7.1949, the erstwhile Travancore State Forces became the Armed Forces of the Travancore-Cochin State. Even before the formation of the Travancore-Cochin State, the Rulers of the States of Travancore and Cochin had executed instruments of accession in favour of the Government of India in respect of the three subjects, Defence, Communications and Foreign Affairs. Subsequent to the integration of the two States, His Highness the Raj Pramukh executed an instrument of accession on behalf of the Travancore-Cochin State, conceding in favour of the Dominion of India, jurisdiction in respect of Defence, Communications and Foreign Affairs pertaining to the State. Later on, by a proclamation issued by H.H. the Raj Pramukh on 24.11.1949, the Travancore-Cochin State acceded to the Union of India and the Constitution of India was accepted and the Constitution for the Travancore-Cochin State also. By Cl. 2 of Art.259 of the Constitution, the Armed Forces of the State became part of the Armed Forces of the Union Subject to the conditions laid down in C1.1 of the same Article. As a preliminary step in furtherance of the assimilation and absorption of the State Forces into the regular Indian Army, these petitioners and other Officers of the Travancore-Cochin State Forces were ordered to appear before the Indian Army Services Selection Board. The Board graded these petitioners as 'unacceptable'. On the strength of such a grading by the Indian Army Services Selection Board, the Army Headquarters ordered the release of these petitioners from their ranks in the Army on certain specified dates. Notices of such release were also served on the petitioners. The Board graded these petitioners as 'unacceptable'. On the strength of such a grading by the Indian Army Services Selection Board, the Army Headquarters ordered the release of these petitioners from their ranks in the Army on certain specified dates. Notices of such release were also served on the petitioners. The grading of these Officers as 'Unacceptable' by the Indian Army Services Selection Board and the consequent order for the release of these petitioners are impeached by them as illegal and void, and accordingly they have filed these petitions seeking relief against the enforcement of those release orders. All these petitions are filed under Art.226 of the Constitution and the petitioners have prayed that this Court may be pleased to issue a writ in the nature of mandamus directing the counter-petitioners not to release the petitioners from their respective ranks in the Army, but to retain them in such ranks with Indian Army rates of pay, allowances and emoluments or, in the alternative, directing the counter-petitioners to provide the petitioners with suitable other employments on terms no less advantageous, or to pay them reasonable compensation, or to retire them on proportionate pension. 2. In O.P. No. 67/1950 the counter-petitioners are (1) Brigadier P.N. Kripal, Commandant, Travancore-Cochin State Forces, Trivandrum, (2) Captain C.S. Gautam, Adjutant, Training Centre Travancore-Cochin State Forces, Trivandrum and (3) The Chief Secretary to the Government of Travancore-Cochin, Trivandrum. In all the other petitions the counter-petitioners are four in number, viz., (1) The Union of India, (2) The Commander-in, Chief, Indian Army, (3) the Travancore-Cochin State represented by the Chief Secretary to Government, Trivandrum, and (4) Brigadier P.N. Kripal, Commandant, Travancore-Cochin State Forces, Trivandrum. All the counter petitioners have entered appearance and have objected to the sustainability of these petitions. The Government Pleader appears on behalf of the Travancore-Cochin State, and the Advocate General appears for all the other counter-petitioners. On behalf of these counter-petitioners a counter-affidavit has been filed, setting forth the grounds of objection to the substainability of the several petitions. 3. One of the objections raised on behalf of the counter-petitioners is that this Court has no jurisdiction to entertain the present petitions for the issue of a writ in the nature of mandamus against the Military authorities in respect of the proceedings taken under the Military Law. Ordinarily, the Civil Court has no power to interfere with matters of Military Law. Ordinarily, the Civil Court has no power to interfere with matters of Military Law. Courts will not interfere with the administration of Military Law by the properly constituted tribunals acting within their jurisdiction. Matters which are placed within the jurisdiction of Military tribunals or authorities constituted under the Military law must be determined by such authorities themselves and their decisions cannot be reviewed or set side by civil courts. It was ruled in R. v. Army Council Ex.P. Ravenscroft (1917) 2 K.B. 504 that civil courts will not interfere with matters relating to Military Law prescribed in the rules for the guidance of Officers or with the proceedings of a Military Court of enquiry or with an action that may be taken by the Army Council. This principle of the common law has been embodied in Cl. 4 of Art.227 of the Constitution of India. That clause deals with the High Court's power of superintendence over all courts and Tribunals within its jurisdiction. In Cl. 4 it is stated that nothing in this Article shall be deemed to confer on a High Court the powers of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed Forces. The general power conferred on the High Court under Art.226 of the Constitution has to be construed subject to the limitation imposed by Cl. 4 of Art.227. In the present petitions the allegation put forward by the petitioners is that the proceedings which have led up to the passing of orders directing their release from their ranks in the Army, have not been passed by any authority lawfully constituted under the provisions of the Military law in force in the State and as such the entire proceedings are ultra vires and consequently void. They have also contended that in directing them to appear before the Army Services Selection Board they have been discriminated as against other officers of the Indian Army and that such discrimination is repugnant to the fundamental right guaranteed by Art.16 of the Constitution. They have also contended that in directing them to appear before the Army Services Selection Board they have been discriminated as against other officers of the Indian Army and that such discrimination is repugnant to the fundamental right guaranteed by Art.16 of the Constitution. If, as complained of by the petitioners, there has been any violation of the fundamental rights guaranteed under the Constitution and if the entire proceedings resulting in the orders for their release from their ranks in the Army are shown to be void ab initio, the petitioners will certainly be entitled to the protection of their rights by means of a writ in the nature of mandamus as prayed for by them. It cannot be said that the Court has no jurisdiction to relieve against unauthorised or illegal acts of military authorities affecting the fundamental rights of persons in military service. In Heddon v. Evans (1919) 35 T.L.R. 642 it was held that the Court can interfere when the authority constituted under military law acts without jurisdiction or in excess of jurisdiction and does something which would be a wrong at common law. Accordingly I hold that in view of the allegations made in these petitions this Court has jurisdiction to entertain the petitions and is bound to examine the question as to how far the allegations are well founded and tenable. 4. One of the grounds on which the order directing the petitioners to appear before the Army Services Selection Board is impeached is that this order was issued on the strength of Army Instruction (India) No. 11/S dated 9th April 1949. This order was in respect of Merged State Forces. Obviously therefore this order could not apply to the Armed Forces in the Travancore-Cochin State. The counter-petitioners maintain that the petitioners and other Officers of the Travancore-Cochin State Forces were directed to appear before the Indian Army Services Selection Board not on the strength of this Order, but on the strength of a reorganisation scheme which had already been sanctioned by the Government of India. Excepting the bare allegation of the petitioners that it was on the strength of Army Order No. 11/S that they were made to appear before the Selection Board, there is nothing to substantiate the same. On the other hand, Exts. Excepting the bare allegation of the petitioners that it was on the strength of Army Order No. 11/S that they were made to appear before the Selection Board, there is nothing to substantiate the same. On the other hand, Exts. A, A(1) and B clearly go to show that a reorganisation scheme had been sanctioned by the Government of India and that Officers of the Travancore-Cochin State Forces including the present petitioners were directed to appear before the Selection Board on the strength of such reorganisation scheme. Copy of the scheme of reorganisation of the Forces of Travancore-Cochin Union and of Mysore has been produced on behalf of the counter-petitioners, and it has been marked as Ext. B. Ext. A is the communication No. F.147/479/D-1(a) dated 17.1.1950 sent by the Government of India to the Commander-in-Chief of the Indian Army. That communication states that in consultation with the Government of Travancore-Cochin Union and Mysore the Governor-General has been pleased to approve of the attached scheme of reorganisation of their State Forces". The attached scheme is Ext. B. It was further stated that no change in the existing terms and conditions of service will be made under paragraph 8 of the scheme without specific order of Government. Ext. A(1) is the communication dated 20.1.1950 sent by the Government of India to the Travancore-Cochin Government forwarding copy of the scheme Ext. B. Cl. 3 of the reorganisation scheme Ext. B stated that the State Forces will be under the operational control of the G.O.C.-in-C of the Indian Army Command in which the Union State is located and that on and from the 1st April 1950 the entire administrative control will also be taken over by the Indian Army, but until that date the Government of the Union State will be in the administrative control. In Cl. 5 of Ext. B it is stated that the training and equipment of the State Forces will be gradually brought up to the level of the Indian Army. In Cl. 6 it is stated that "since it is essential that the standard of Officers must be the same as in the rest of the Indian Army, the present Officers will be screened by an Indian Army Services Selection Board; an Officer of the Union State will be co-opted temporarily to the Board to assist in determining the suitability of the officers. From 1.4.1950 the responsibility for providing Officers and other ranks will automatically be that of the Indian Army". By Cl. 8 it is provided that until the process or reorganisation, reconstitution and reduction is complete the personnel will continue on the existing terms and conditions of service. In view of these provisions in Ext. B, it is clear that the Officers of the Travancore-Cochin State Forces were made to appear before the Indian Army Services Selection Board on the strength of that scheme and that the screening and the consequent grading of these Officers were done by the Board as contemplated by Cl. 6 of the scheme. This grading is impeached by the petitioners as having been unauthorisedly done and without any legal sanction. As already stated, the control of the Defence Forces in the State had become vested in the Government of India from the date of the instrument of accession by H.H. the Raj Pramukh in favour of the Government of India. The Government of India had therefore the legal right to reorganise and reconstitute the State Forces as a preliminary step to the subsequent absorption and assimilation of these Forces into the Indian Army. Ext. B reorganisation scheme ordered by the Government of India cannot therefore be said to be unauthorised or illegal. Since by that time the Government of India had not taken over complete control of the State Forces, both operational and administrative, the scheme of reorganisation was formulated in consultation with the Government of Travancore-Cochin State. The Scheme having been thus evolved with the concurrence of the Government of India and the Government of the Travancore-Cochin State, had full legal forces. Pending such reorganisation and reconstitution, the Constitution of India came into force on 20.1.1950. By Cl. 2 of Art.259 of the Constitution, the Armed Forces of the Travancore-Cochin State, also became part of the Armed Forces of the Indian Union. In C1.1 of the same Article it is provided as follows: "Notwithstanding anything contained in this Constitution a State specified in Part B of the First Schedule having any Armed Forces immediately before the commencement of this Constitution may until Parliament by law otherwise provides, continue to maintain the said Forces after such commencement subject to such general or special orders as the President may from time to time issue in that behalf". Reading these two clauses together, it is clear that even though the State Forces became part of the Armed Forces of the Indian Union, its separate existence for such time until Parliament by law otherwise provided was also recognised subject to general or special orders as may be issued from time to time by the President. 5. It is argued on behalf of the petitioners that by virtue of Cl. 2 of Art.259, the Travancore-Cochin State Forces acquired the same status and the same rights and privileges possessed by the Indian Army. In support of this position it is pointed out that the Adaptation of Laws Order, 1950 amended S.5(1) of the Indian Army Act, Act VIII of 1911, so as to make the Act applicable to the Armed Forces maintained in any Part B State. On 1st April, 1950, Notification No. 11/E was also issued by the Central Government in exercise of the powers conferred by S.5 of Act VIII of 1911, making the Act applicable to the Armed Forces of the Travancore-Cochin State also. Cl. 2 of S.7 of the Act defined "Indian Commissioned Officer' as follows:- "Indian Commissioned Officer" means a person commissioned, gazetted or in pay as an officer holding His Majesty's Commission in the Indian Land Forces, and includes in relation to a person subject to this Act when serving under such conditions as may be prescribed, a person holding a Commission in the Indian Air Force.' By Notification No. 11/E dated 1st April 1950 the following expression was also added to Cl. 2 of S.7 viz., "and also includes an Officer of the State Forces." Thus by virtue of this Notification, the Indian Army Act, Act VIII of 1911, was made applicable to the Travancore-Cochin State Forces also. All the same it cannot be said that by the mere fact of the Army Act having been made applicable to the State Forces, the personnel in those Forces acquired the same status and rights as the Officers of the regular Indian Army. Such status had yet to be determined by Parliament enacting suitable laws as contemplated by C1.1 of Art.259 of the Constitution. The Army Act, Act XLVI of 1950 is such a law passed by Parliament. By the passing of this Act, the earlier Act, Act VIII of 1911, was repealed. Such status had yet to be determined by Parliament enacting suitable laws as contemplated by C1.1 of Art.259 of the Constitution. The Army Act, Act XLVI of 1950 is such a law passed by Parliament. By the passing of this Act, the earlier Act, Act VIII of 1911, was repealed. The provision for the application of Act XLVI of 1950 to the Land Forces in Part B States is contained in Cl. (h) of S.2. In that clause it is provided that persons belonging to the Land Forces of the Part B States will also be governed by the Act when the whole or part of such Forces is placed at the disposal of the Central Government in pursuance of a Notification issued under S.5 of the Act. S.R.O. No. 131 dated 22nd July 1950, such a Notification issued by the Central Government and it is directed that all persons belonging to the Land Forces of the States of Mysore, Hyderabad and Travancore-Cochin shall be placed at the disposal of the Central Government. By virtue of this Notification the Army Act of 1950 became applicable to the personnel of the Travancore-Cochin State Forces. Here again the mere fact that the Army Act became applicable to them cannot mean that they automatically acquired the status and rights of the personnel of the regular Indian Army. An Officer under the Indian Army is defined in S.3 Cl. (xviii) as follows:- "Officer means a person commissioned, gazetted or in pay as an officer in the regular Army and includes (e) an officer of the Land Forces in Part B States who is for the time being subject to this Act." It is clear from sub-cl. (e) of Cl. xviii of S.3 that an Officer of the Land Forces in any Part B State was not recognised as a regular Officer of the Indian Army for all purposes and for all time. The expression "for the time being subject to the Act" indicates that the subsequent absorption of such an Officer into the regular Army was contemplated by the Act. He would attain the full status as an Officer of the Indian Army only on getting a Commission from the President as contemplated by S.10 of the Act. The expression "for the time being subject to the Act" indicates that the subsequent absorption of such an Officer into the regular Army was contemplated by the Act. He would attain the full status as an Officer of the Indian Army only on getting a Commission from the President as contemplated by S.10 of the Act. That section lays down that the President may grant to such person as he thinks fit a commission as an Officer or as a Junior Commissioned Officer or appoint any person as a warrant Officer of the Regular Army. Admittedly these petitioners have not yet been granted any such Commission by the President, as Officers of the Regular Army. Under S.10 the President will grant a Commission only to such persons as the President thinks fit. This necessarily means that a process of selection and grading by competent authorities has to take lace for ascertaining those who are fit for the grant Commission as officers under the Regular Indian Army. Army Instruction No. 12/B dated 29th September 1950 was issued for the reorganisation and reconstitution of the State Forces on being taken by the Government of India. The preliminary steps for such reorganisation and reconstitution had already been taken on the strength of Ext. B scheme which had been formulated by the Government of India. The Officers of the Travancore-Cochin State Forces were accordingly made to appear before the Indian Army Services Selection Board. After screening these Officers, the Board graded them under different classes. The petitioners were graded as'unacctable'. The Army authorities accepted such grading and the release orders against these petitioners were passed on the strength of such grading. 6. Before obtaining the sanction of the President for the termination of the services of these petitioners and releasing them from their ranks, orders appear to have been issued by the Army Head Quarters directing the release of these petitioners. Such were the orders in force when the present petitions were filed in Court. But subsequently, these release orders were all cancelled and those officers who had been released were reinstated. On 31.1.1951 a memo was filed in Court on behalf of the Counter-petitioners stating that all the prior orders of release issued against these petitioners were cancelled. Normally, these petitions would have become infructuous on account of such a cancellation of the release orders. On 31.1.1951 a memo was filed in Court on behalf of the Counter-petitioners stating that all the prior orders of release issued against these petitioners were cancelled. Normally, these petitions would have become infructuous on account of such a cancellation of the release orders. But a communication dated 5th March 1951 was issued by the Government of India to the Commander-in-Chief of the Indian Army, conveying the sanction of the President for the relinquishment of Commissions and termination of the services of these petitioners. Ext. I is that communication and it states as follows:- "I am directed to convey the sanction of the President to the relinquishment of Commissions and termination of services of the following Officers of the Travancore-Cochin State Forces with effect from the dates they are relieved of Military duty". The names of all these petitioners with their respective ranks are also given in Ext. I. On the strength of this communication, revised orders have been served on the petitioners intimating them that they may proceed on eligible leave on the afternoon of 31st March 1951 and that at the end of the leave period they will be relieved of their ranks in the Indian Army. It is common ground that the President's sanction referred to in Ext. I was accorded on the strength of the grading of these petitioners as "unacceptable" by the Indian Army Service Selection Board. It has already been found that the proceedings which led up to such a grading were legal and proper. What remained for giving effect to such grading was the obtaining of the sanction of the President for the termination of the services of these petitioners. Ext. I shows that the sanction for such termination has also been accorded by the President. S.18 of the Army Act of 1950 lays down that every person subject to this Act shall hold office during the pleasure of the President. Art.310 of the Constitution also lays down that every person who is a member of the Defence Services holds office during the pleasure of the President. Ext. I shows that in exercise of the power conferred under Art.310 of the Constitution and S.18 of the Army Act, the President has decided to terminate the services of these petitioners in the Army. Ext. I shows that in exercise of the power conferred under Art.310 of the Constitution and S.18 of the Army Act, the President has decided to terminate the services of these petitioners in the Army. Such a decision was arrived at after adopting the usual procedure for determining the competency and eligibility of these petitioners for obtaining Commission as Officers of the Indian Army, from the President. The proposed termination of the services of these petitioners in the Army cannot therefore be questioned on the ground that the proceedings which culminating in the sanction referred to in Ext. I are ultra vires or illegal. 7. The position taken up by the petitioners that in thus terminating their services in the Army a discrimination has been shown against them as compared with other officers in the Indian Army and that their right to continue to hold their present ranks in the Army has been infringed, has no substance in it. In the first place, it has to be stated that as Officers in the Army there is no guarantee for the continuance of their services and rank. Such service is liable to be terminated by the competent authority at any time and for any valid reason. Want of fitness as declared by a competent body is certainly a valid ground for terminating the service of these persons. The complaint of discrimination is based on the assumption that with the passing of the Indian Constitution and also of the issue of the Notification under S.5(1) of Act VIII of 1911, these petitioners had acquired the full status and rights as Officers of the regular Indian Army. I have already found that such status and rights would be acquired by these petitioners only on receipt of Commission as Officers of the regular Indian Army from the President, as contemplated by S.10 of the Army Act of 1950. The screening of these Officers by the Selection Board was only a step in that direction. Even though the result of such screening has been unfavourable to these petitioners, they cannot now complain that it was the result of any discrimination shown against them. Discrimination as between those 'acceptable' and those 'unacceptable' is inevitable in any process of selection and grading and there can be nothing wrong in such a discrimination. Even though the result of such screening has been unfavourable to these petitioners, they cannot now complain that it was the result of any discrimination shown against them. Discrimination as between those 'acceptable' and those 'unacceptable' is inevitable in any process of selection and grading and there can be nothing wrong in such a discrimination. Admittedly all officers of the Travancore-Cochin State Forces where subjected to the screening by the Selection Board, and those who were graded as 'acceptable' were given Commission as Officers in the regular Indian Army. Thus as between officers similarity situated, there has been no discrimination in the matter of being subjected to 'screening' by the Selection Board. It follows therefore that the fundamental right guaranteed by Art.16 of the Constitution has not in any way been violated or infringed by the proceedings which culminated in the sanction referred to in Ext. I. The prayer in these petitions for the issue of a writ in the nature of mandamus, directing the counter-petitioners to retain them in their present positions on the Indian Army rates of pay, allowances and emoluments, is clearly unsustainable and cannot be granted. 8. Then there is the alternative prayer made by the petitioners that a writ may be issued directing the counter-petitioners to provide the petitioners with employment no less advantageous or to award reasonable compensation to them or to retire them on proportionate pension. This alternative prayer is stated to be based on Art.19 of the Covenant entered into between the Rulers of Travancore and Cochin and concurred in by the Government of India on 1.7.1949. The counter-petitioners have questioned the petitioners' right to agitate the question of any right arising out of any provision in the Covenant and it is pointed out that Art.363 of the Constitution stands as a bar to the consideration of such matters by any Court. I do not think it necessary in these proceedings to consider and decide the question as to the legality and the enforceability of the rights claimed by the petitioners on the strength of Art.19 of the Covenant. Even assuming that the petitioners have got the right as claimed by them, I am definitely of the view that a writ in the nature of mandamus cannot be issued for the enforcement of such rights claimed in general and in several alternatives. Even assuming that the petitioners have got the right as claimed by them, I am definitely of the view that a writ in the nature of mandamus cannot be issued for the enforcement of such rights claimed in general and in several alternatives. In the first place, there is no definiteness about these reliefs claimed by the petitioners. They ask for three alternative reliefs, namely that they may be provided with alternative employments no less advantageous, or that they may be paid reasonable compensation or that they may be retired on proportionate pension. No writ in the nature of mandamus can be issued directing the grant of one or other of such alternative reliefs. The authority concerned may have to exercise its discretion in the light of all attendant circumstances, deciding as to the particular relief that could be granted to each of these petitioners. The Court will not issue a writ of mandamus so as to compel such authority to exercise its discretion in any particular and specified manner. It is not shown that any or all of the alternative reliefs have been denied to these petitioners. On the other hand, it is admitted even in the present petitions that suitable employments have been provided for some of the other Officers who were included in the list of 'unacceptables'. From the records Exts. F, H, K, L and M, which have been produced at the instance of the present petitioners, it is evident that the counter-petitioners have been and are taking the necessary steps for the grant of one or other of the alternative reliefs claimed by the petitioners. It is premature at this stage to forsee what would be the outcome of such attempts. The present situation does not therefore call for the issue of any writ in the nature of mandamus even in respect of the alternative reliefs claimed by the petitioners. 9. In the result I hold that all these petitions have been misconceived and are unsustainable. Accordingly all the petitions are dismissed with costs. Advocate's fee Rs. 200/-. Dismissed.