Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 2024 (RAJ)

Nathulal Gurjar v. Union of India

2013-11-18

M.N.BHANDARI

body2013
Hon'ble BHANDARI, J.—The writ petitions are heard together as it involves common question of law. The petition of Bhoop Singh was earlier transferred to Armed Forces Tribunal (for short “AFT”). It has been sent back to this Court vide order dated 27.04.2011 holding that unless applicant is enrolled in the Indian Army and is subjected to the Army Act, the Tribunal has no jurisdiction to hear and decide the application. In view of order of AFT dated 27.04.2011, the writ petition is again listed before this Court. 2. The question involved in the present writ petitions is about the jurisdiction, inasmuch as, both the petitioners appeared in selection for different posts. The grievance of petitioner/s is in regard to selection thus the writ petitions were filed before this Court. 3. Learned counsel Mr.Sunil Samdaria submits that unless a candidate is enrolled or appointed in Army, the jurisdiction does not lies with the Armed Forces Tribunal (for short “AFT”) under the provisions of Armed Forces Tribunal Act, 2007 (for short “Act of 2007”). Referring to the definition of service matters as given under Section 3(o) of the Act of 2007, it is submitted that jurisdiction of AFT comes in picture when it is matter in relation to the persons subject to Army Act of 1950 (for short “Act of 1950”), Navy Act, 1957 and Air Forces Act, 1950. The aforesaid acts came in picture when a candidate is already enrolled or appointed. Reference of few provisions of Act of 1950 is given, more specifically, Section 2 of the Act of 1950 which provides as to who are the persons subjected to the Act. The aforesaid provision is quoted hereunder: “2. Persons subject to this Act. The aforesaid acts came in picture when a candidate is already enrolled or appointed. Reference of few provisions of Act of 1950 is given, more specifically, Section 2 of the Act of 1950 which provides as to who are the persons subjected to the Act. The aforesaid provision is quoted hereunder: “2. Persons subject to this Act. -(1) The following persons shall be subject to this Act wherever they may be, namely: (a) Officers, junior commissioned officers and warrant officers of the regular Army; (b) Persons enrolled under this Act; (c) Persons belonging to the Indian Reserve Forces; (d) Persons belonging to the Indian Supplementary Reserve Forces when called out for service or when carrying out the annual test: (e) Officers of the Territorial Army, when doing duty as such officers, and enrolled persons of the said Army when called out or embodied or attached to any regular forces, subject to such adaptations and modification as may be made in the application of 'this Act to such persons under sub-section (1) of S. 9 of the Territorial Army Act, 1948 (56 of 1948); (f) Persons holding commissions in the Army in India Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces; (g) Officers appointed to the Indian Regular Reserve of Officers, when ordered on any duty or service for which they are liable as members of such reserve forces; (h) omitted (i) Persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular Army. (2) Every person subject to this Act under Cls. (a) to (g) of sub-section (1) Shall remain so subject until duly retired, discharged, released, removed, dismissed or cashiered from the service.” • 4. Learned counsel has further given reference of Section 10, 13, 14, 15 and 18 of the Act of 1950. It is to show the mode of commission, appointment and enrollment under the Act of 1950. A reference of tenure of service as given under Section 18 is made in view of opening word of Section 3(o)(ii) of the Act of 2007. It is to show the mode of commission, appointment and enrollment under the Act of 1950. A reference of tenure of service as given under Section 18 is made in view of opening word of Section 3(o)(ii) of the Act of 2007. It is stated that appointment or commission of a candidate is when the president grants, commission of an officer or a junior commission officer or appoint any person as warrant officer in the regular army. Hence, any controversy or litigation in regard to pre-appointment has to be addressed by this Court and not by the AFT. The mode of enrollment as given under Section 14 and the validity of enrollment given under Section 15 of the Act of 1950 was elaborately referred so as Section 13 of the Act of 1950 to indicate the procedure for enrollment of the officer. It is accordingly prayed that keeping in mind the language of Section 3(o) of the Act of 2007 so as the provisions of Act of 1950, the jurisdiction to hear and decide the matter in regard to any controversy prior to appointment lies in the jurisdiction of this Court and not by the AFT. 5. I have considered the submissions made and perused the record. 6. Since issue is regarding jurisdiction in reference to definition of service matters given under the Act of 2007, the same is quoted hereunder apart from Sec.14 of the same Act, which provides jurisdiction, powers and authority of service matters. 5. I have considered the submissions made and perused the record. 6. Since issue is regarding jurisdiction in reference to definition of service matters given under the Act of 2007, the same is quoted hereunder apart from Sec.14 of the same Act, which provides jurisdiction, powers and authority of service matters. Both the provisions are quoted hereunder for ready reference: “3(o) “service matters”, in relation to the persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force, 1950, mean all matters relating to conditions of their service and include: (i) remuneration (including allowances), pension and other retirement benefits; (ii) tenure, including commission, appointment, enrolment, probation, confirmation, seniority, training, promotion, reversion, premature retirement, superannuation, termination of service and penal deductions; (iii) summary disposal and trials where the punishment of dismissal is awarded; (iv) any other matter, whatsoever, but shall not include matters relating to— (i) orders issued under section 18 of the Army Act, 1950 (46 of 1950) sub-section (1) of section 15 of the Navy Act, 1957 (62 of 1957) and section 18 of the Air Force Act, 1950; (45 of 1950) and (ii) transfers and postings including the change of place or unit on posting whether individually or as a part of unit, formation or ship in relation to the persons subject to the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950 (45 of 1950); (iii) leave of any kind; (iv) summary court martial except where the punishment is of dismissal or imprisonment for more than three months; Section 14 of the Act of 2007 “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. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed. (3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing. (4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a suit in respect of the following matters, namely— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872) requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application for default or deciding it exparte; (h) setting aside any order of dismissal of any application for default or any order passed by it exparte; and (i) any other matter which may be prescribed by the Central Government. (5) The Tribunal shall decide both questions of law and facts that may be raised before it.” 7. The perusal of definition of “service mattes” shows it to be in relation to the persons subject to Army Act, Navy Act and Air Force Act and it provides all the matters relating to conditions of their service and shall include tenure, commission, appointment, etc. 8. According to learned counsel for the petitioner/s, the words used after tenure under Section 3(o)(ii) is to be considered and to be determined to have reference of the tenure of appointment, commission, probation, training, etc. and is to be read in reference to the Army Act, 1950. The tenure comes in picture after appointment, thus definition excludes any matter prior to appointment. 9. I am unable to accept the argument aforesaid. and is to be read in reference to the Army Act, 1950. The tenure comes in picture after appointment, thus definition excludes any matter prior to appointment. 9. I am unable to accept the argument aforesaid. If the definition given under Section 3(o)(ii) of the Act of 2007 is looked into, after every word “,” (Column) is used and it is also after word “tenure” thus, word “tenure” cannot be applied before every word like commission, appointment, etc., and if, at all, it is taken before every word then there would be tenure confirmation, tenure seniority, tenure promotion and tenure reversion apart from tenure retirement, tenure termination of service, etc. It would be nothing but mis-interpretation of provision, where each word is separately used with “,” (column). In the light of the aforesaid, every word has to be read separately. If the word appointment is read separately in the definition of “service matters” then includes matters of appointment. It would obviously be a dispute in the matter of appointment. After the appointment, a dispute cannot be for appointment but can be regarding probation, confirmation, seniority, training, promotion and so on. In the background aforesaid, if a question for appointment is excluded from the definition of “service matters”, it would be nothing but re-writing the provision. 10. The issue is now required to be considered in the light of the Army Act of 1950 as the definition of “service matters” refers to the persons subject to Army Act. 11. Section 2 of the Act of 1950 has been referred to show as to who are the persons subject to Act of 1950 and if substance of the provision is looked into, it means those, who are enrolled or appointed apart from commission officers. If, that is so, then what is the significance of Section 3(o)(ii) of the Act of 2007 where the word “appointment” has been used. Section 10 of the Act of 1950 is relevant where subject matter of the Act of 1950 is given. There president may grant commission to an officer or appoint any person as a warrant officer. If that is so, the Act of 1950 covers the matter of appointment, which is to be given by the president. Section 11 provides about ineligibility of aliens for enrollment and Section 13 of the Act of 1950 provides procedure before enrolling officers. There president may grant commission to an officer or appoint any person as a warrant officer. If that is so, the Act of 1950 covers the matter of appointment, which is to be given by the president. Section 11 provides about ineligibility of aliens for enrollment and Section 13 of the Act of 1950 provides procedure before enrolling officers. Section 14 of the Act of 1950 provides mode of enrollment. Conjoint reading of the Act of 1950 along with Section 3(o)(ii) of the Act of 2007 makes it clear that controversy in regard to appointment is nothing but under the Act of 1950 and if, that is the position, jurisdiction to resolve the dispute pertaining to appointment lies in the jurisdiction of AFT. The purpose and object for enactment of the Act of 2007 was to take away all the service matters relating to Army, Navy and Air Force from the jurisdiction of the High Court and to be brought before the Tribunal. If any matter relating to appointment in Army is excluded from the jurisdiction of AFT then would be against the object of the enactment. 12. Taking note of the aforesaid, I am unable to accept the arguments of learned counsel for the petitioner/s so as to exercise jurisdiction of this Court in relation to matter of appointment. The jurisdiction lies with the AFT and otherwise petitioners are not remedy-less, inasmuch as, if the jurisdiction does not lie to this Court, grievance of petitioners would be redressed by the Tribunal where jurisdiction exists. 13. Accordingly, both the writ petitions are ordered to be transferred to the Armed Forces Tribunal and be treated as disposed of from this Court. 14. It is further directed to the AFT not to transfer the matters to the High Court as such powers does not lie with the Tribunal but lies with the High Court only. It is not clarified as to under what provision, order dated 27.4.2011 was passed by the Tribunal to transfer the matter to the High Court. Accord-ingly, it would be expected from the Tribunal to adjudicate the matter unless this order is reversed by the Division Bench or by the Hon'ble Apex Court.