IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WA.No. 1820 of 2008() AGAINST THE JUDGMENT IN WPC.23376/2007 Dated 22/08/2008 APPELLANT: (PETITIONER IN THE WP(C) LT.COL.MAHENDER SINGH YADAV, IC-43469, OFFICER-IN-CHARGE, LEGAL CELL, STATION HEADQUARTER (ARMY),NAVAL BASE, KOCHI-682 004. BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI. 2. CHIEF OF THE ARMY STAFF, SOUTH BLOCK, ARMY HEADQUARTERS, NEW DELHI. 3. MILITARY SECRETARY, SOUTH BLOCK, ARMY HEADQUARTERS, DHQ PO, NEW DELHI-110 001. 4. LT.COL.DEVENDRA SINGH (PRESENTLY IN THE RANK OF COLONEL),IC-45712, OFFICIATING DEPUTY JUDGE ADVOCATE GENERAL, HQ I CORPS, C/O.56 APO. 5. LT.COL.V.CHAKRAVARTI (PRESENTLY IN THE RANK OF COLONEL), IC-45787, OFFICIATING DEPUTY JUDGE ADVOCATE GENERAL, HQ 33 CORPS, C/O.99 APO. 6. LT.COL.D.K.AHLUWALIA (PRESENTLY IN THE RANK OF COLONEL),IC-45770, ASSISTANT JUDGE ADVOCATE GENERAL, HEADQUARTERS, WESTERN COMMAND, CHANDI MANDIR, HARYANA, PRESENTLY WORKING AS DEPUTY JUDGE ADVOCATE GENERAL, HQ 16 CORPS, C/O.56 APO. ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL- R1-3 SRI.THOMAS MATHEW NELLIMOOTTIL,SR.PANEL - R1 TO R3 SRI.SUDHAKARA PRASAD. C.P, ADOVATE GENERAL THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1820 OF 2008 --------------------------------------------- Dated this the 22nd day of September, 2009 JUDGMENT Kurian Joseph, J. The appellant is the writ petitioner. The Writ Petition was filed with certain grievances regarding the promotion of the petitioner to the rank of Colonel. There are other ancillary grievances as well. The learned Single Judge by judgment dated 22.8.2008 dismissed the Writ Petition on the only ground of lack of territorial jurisdiction. It has been made clear in the judgment that the merits of the contentions have not been dealt with. The petitioner pursued the matter in Writ Appeal filed on 2.9.2008. While the Writ Appeal was pending before this Court, the Armed Forces Tribunal Act, 2007 has come into force and the Tribunal has been set up with effect from 10.8.2009. It is the contention of the appellant/petitioner that since the Tribunal has jurisdiction to deal with the matter on merits, the appellant may be permitted to pursue the matter before the Tribunal. In that view of the matter, it is submitted that the appellant may be permitted to withdraw the Writ Petition with liberty to move the Tribunal. It is also submitted that since all the pleadings of the parties have become part of the records, the same also may be transferred to the Tribunal. We are afraid, W.A. NO. 1820/2008 2 the latter submission cannot be appreciated. Though, ordinarily this Court may not permit to withdraw the Writ Petition at the appellate stage, we find that in the interest of justice, this is a fit case where the appellant should be permitted to withdraw the Writ Petition so as to enable him to approach the Tribunal. We also find that under Section 22 of the Armed Forces Tribunal Act, 2007, the Tribunal has ample power to condone the delay in approaching the Tribunal. In the above circumstances, we set aside the judgment of the learned Single Judge and dispose of the Writ Appeal permitting the appellant/petitioner to withdraw the Writ Petition with liberty to approach the Tribunal. We make it clear that the time spent by the writ petitioner in prosecuting the Writ Petition and the Writ Appeal will stand excluded in computing the period of limitation. It will also be open to the appellant to produce the certified copies of the pleadings before the Tribunal. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1820/2008 3 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A.NO.1820/2008 JUDGMENT 22nd September, 2009