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2016 DIGILAW 122 (JK)

Rakesh Razdan v. Union of India

2016-03-18

N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasanthakumar, J. This writ petition is preferred by the writ petitioner with a prayer to quash order dated 13.01.1999 issued by respondent no. 3 awarding displeasure against the petitioner as well as letter dated 24.07.1998 communicating adverse remarks to the petitioner for the period ending March, 1997, letter dated 28.12.1998 communicating rejection of representation against adverse remarks, letter dated 25.06.2001 rejecting the representation by respondent no. 2 and order issued by respondent no. 3 whereby the petitioner has been excluded from consideration and promotion to the post of Deputy Commandant from the date of promotion given to his immediate juniors with all consequential benefits. 2. When the matter was heard on 22.12.2015, Mr. Rajesh Kumar Thappa, CGSC, the learned counsel appearing for the respondents raised a preliminary objection regarding the maintainability of the writ petition before this Bench, stating that cause of action to challenge the impugned orders has arisen within the jurisdiction of Kashmir Province, therefore, the writ petition could be filed before the Srinagar Wing of this Court. 3. Since a preliminary objection has been raised regarding want of jurisdiction of this Court, without going into merits of the case the said issue has been taken for determination. 4. According to the respondents the petitioner joined as Assistant Commandant on 02.07.1993 and was posted to Company Commander ‘C’ Coy of 77 Bn, BSF deployed in CI Role (Srinagar) with effect from 28.06.1995 to 22.04.1997 and his company remained deployed at Leeward Hotel, Batpura with Coy Head quarter at Metro Hotel. One Constable Ranjeet Ekka, while on sentry duty at Leeward Hotel post lost his personal weapon SLR butt. No. 235 body No. DJ-3952 along with one magazine and 20 rounds from the post on intervening night of 24/25th March, 1997. The post personnel of petitioner's company had consumed liquor as celebration of Holi festival and played Holi with civilians. The civilians entered in Leeward Hotel while the sentry was on duty as he was asleep on the chair near the Bukhari under the influence of liquor. The rifle in question might have been stolen by any civilian for ANEs during the said period. The petitioner who was also present in the Post failed to exercise proper command and control over his troops at Leeward Hotel post and was accordingly recommended for issuance of IG's displeasure. The rifle in question might have been stolen by any civilian for ANEs during the said period. The petitioner who was also present in the Post failed to exercise proper command and control over his troops at Leeward Hotel post and was accordingly recommended for issuance of IG's displeasure. Consequently the 3rd respondent issued displeasure on 13.01.1999 Accordingly adverse remarks were made pertaining to incident which took place on 24.03.1997 in the ACR of the petitioner for the year 1996-1997. 5. Thus the contention of learned counsel for the respondent is that entire cause of action for issuing the displeasure and entry in the ACR had occurred while the petitioner was serving at Srinagar and therefore no cause of action has arisen to challenge the order before this Bench. Learned counsel also relied on a judgment of Hon'ble the Supreme Court reported in AIR 1999 SC 1591 (Rajni Sehgal v. State of J&K) in support of his contention. He has also relied on a Full Bench decision of Allahabad High Court reported in 2004 Lawsuit (All) 1314 (Rajendra Kumar Mishra v. Union of India). Learned counsel also submitted that before filing this writ petition, leave of the Chief Justice of this Court or in the absence of Chief Justice, leave from the senior moist Judge, has not been obtained, therefore, entertaining the writ petition by this Bench without the leave is impermissible and the petitioner has to go before the Srinagar Bench to challenge the impugned orders. 6. Mr. P.N. Raina, learned senior counsel appearing for the petitioner on the other hand argued that the said jurisdictional issue having not been raised in the objections filed by the official respondents, same cannot be allowed to be raised at the time of hearing. Learned senior counsel also submitted that some of the orders under challenge are passed by the Director General of Border Security Force at New Delhi, therefore, the petitioner can maintain the writ petition in this Court. 7. I have considered the rival submissions. 8. The learned senior counsel fairly submitted that before filing this writ petition in the year 2001 no leave from the Chief Justice or the senior most Judge, if the Chief Justice was not stationed at Jammu, was obtained. 7. I have considered the rival submissions. 8. The learned senior counsel fairly submitted that before filing this writ petition in the year 2001 no leave from the Chief Justice or the senior most Judge, if the Chief Justice was not stationed at Jammu, was obtained. Thus the point to be considered is as to whether any cause of action has arisen within the territorial jurisdiction of Jammu Bench which is having jurisdiction over 11 districts. 9. Admittedly the incident which was stated as a reason to express the displeasure and recording of Adverse ACR as well as submitting representation to remove the adverse entry and rejection of such representation due to which the petitioner was not given promotion, have happened at Srinagar while the petitioner was serving at Srinagar. The Hon'ble Supreme Court in the decision reported in AIR 1999 SC 1591 (Rajni Sehgal v. State of J&K) considered the very issue, namely, entertaining the LPA preferred at Srinagar Bench against an order passed in writ petition by Jammu Bench which stayed the operation of the order of the writ court. The writ petition was filed by the petitioner in that case at Jammu while she was serving as Officiating Superintendent Sub Jail Reasi, Jammu. Entertaining LPA and granting interim stay by the Division Bench at Srinagar was raised as an issue as the entire cause of action arose within the jurisdiction of Jammu Bench. It was urged in the Special Leave Petition before the Supreme Court that as Division Bench was available at Jammu, the LPA should have been filed at Jammu which could not have been filed at Srinagar particularly when the petitioner has filed a caveat in Jammu Bench through her lawyer as she was apprehending that LPA may be filed. It was argued on behalf of the respondents before the Hon'ble Supreme Court that there were summer vacations of the High Court, therefore without the order of the Chief Justice in terms of circular dated 26.10.1993 seeking leave to file appeal, LPA was filed and rightly entertained by the Srinagar Wing. The Hon'ble Supreme Court rejected the said contention by holding that LPA was filed at the time when High Court was not having any vacations, therefore, the contention that the Circular has no application during summer vacation cannot be accepted. The Hon'ble Supreme Court rejected the said contention by holding that LPA was filed at the time when High Court was not having any vacations, therefore, the contention that the Circular has no application during summer vacation cannot be accepted. The Circular having been issued by the Chief Justice by order dated 26.10.1993 stating that appeals relating to Jammu wing of the High Court shall be filed, heard and decided at Jammu wing and appeals relating to Srinagar Wing shall be filed heard and decided at Srinagar wing. “Letters Patent Appeals directed against judgment/orders delivered/passed at Srinagar Bench shall be filed, heard and decided at the Srinagar Bench. Similarly, such appeals directed against judgment/orders delivered/passed at the Jammu Bench shall filed, heard and decided at the Jammu Bench. Provided that if it is not practicable to file an appeal pertaining to the particular Bench at that Bench it may be filed at the other Bench with the leave of the Chief Justice or in his absence, of the Senior Judge available at the headquarteer. This order shall take effect from 1st November 1993” 10. The only exceptional circumstance stated in that proviso is that when it is not practicable to file such an appeal at that wing, it can be filed before other wing with the leave of the Chief Justice or his absence, the senior Judge available at the headquarter. It was also noticed by the Hon'ble the Supreme Court that from week commencing 30.07.1996 Division Bench was available at Jammu therefore the respondents cannot take the benefit of proviso to Circular dated 26.10.1993 and file the appeal at Srinagar. Thus, entertaining the appeal at Srinagar as well as passing interim order was set aside and this court was given directions to transfer the LPA to Jammu Bench of the High Court for consideration. 11. A full Bench of Allahabad High Court in the decision reported as 2004 Lawsuit (All) 1314 (Rajendra Kumar Mishra v. Union of India), considered the issue as to whether the order of Chief of Army staff at Delhi, can be challenged in any High Court of the Country. The full Bench held that unless the cause of action or a part of cause of action has arisen within the territorial jurisdiction of a High Court, writ petition under Article 226 of the Constitution of India cannot be entertained. The full Bench held that unless the cause of action or a part of cause of action has arisen within the territorial jurisdiction of a High Court, writ petition under Article 226 of the Constitution of India cannot be entertained. The Full Bench relied on the judgments of Hon'ble the Supreme Court reported in AIR 2001 SC 416 (Rajasthan High Court Association v. Union of India) and (1995) 4 SCC 738 (U.P Rashtriya Chini Mill Adhikari Parishad v. State of U.P) and in paragraphs 40 and 41 held thus: “40. For the reasons given above we are of the opinion that the Chief of Army Staff can only be sued either at Delhi where he is located or at a place where the cause of action, wholly or in part, arises. 41. We may mention that a “cause of action” is the bundle of facts which, taken with the law applicable, gives the plaintiff a right to relief against the defendant. However, it must include some act done by the defendant, since in the absence of an act, no cause of action can possibly occur [vide Radhakrishnamurithy v. Chandrasekhara Rao, AIR 1966 A.P 334 ; Ram Awalamb v. Jata Shankar, AIR 1969 All.526 (FB), and Salik Ram Adya Prasad v. Ram Hakhem, AIR 1973 All. 1071.” 12. In the light of the above judgments, I am of the view that the writ petition filed by the petitioner before Jammu wing, without obtaining the leave from the Chief Justice, is not maintainable and by following the judgment of Hon'ble Supreme Court reported in AIR 1999 SC 1591 (Rajni Sehgal v. State of J&K) this writ petition is transferred to Srinagar wing of the High Court for hearing. The writ petition shall be posted for disposal in the 3rd week of April 2016.