IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 203 of 2009 (S/B) Lt. Col. (Retd.) H.S. Sharma. .……… Petitioner Versus Union of India & others. .………. Respondents. Mr. Lalit Kumar, Advocate for the petitioner. Mr. Vikas Pandey, Advocate for the respondents. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The petitioner has approached this Court by filing the present writ petition claiming two reliefs. Firstly, he claims disability pension, by taking into consideration the disability element of the petitioner as 75%, with effect from the date of his retirement. Based on his aforestated disability, the petitioner claims allotment of a petrol pump / LPG dealership, as a disabled defence personnel. 2. At the present juncture, the claim of the petitioner for being declared as disabled, and thereafter, for disability pension is still undecided. It is only thereafter, that the second relief sought by the petitioner can be taken into consideration. Insofar as the first relief is concerned, we are satisfied, that the claim of the petitioner, raised before this Court, now has to be transferred for adjudication to the Armed Forces Tribunal under the provisions of the Armed Forces Tribunal Act, 2007. After the promulgation of the Armed Forces Tribunal Act, 2007, a petition pertaining to any service matter would only lie to the Armed Forces Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007. Section 14 is being extracted hereunder: “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 article 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 (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 section 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 ex parte; (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; 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.” 3. But then in terms of Section 34 of the Armed Forces Tribunal Act, 2007 all such proceedings, inter alia, pending before a High Court, which would have fallen within the jurisdiction of the Armed Forces Tribunal, had such proceeding arisen after the establishment of the Armed Forces Tribunal, are mandatory to stand transferred to the Armed Forces Tribunal on the date on which the Tribunal is constituted. Section 34 of the Armed Forces Tribunal Act, 2007 is being reproduced hereunder: “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 sub- section (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; 3 (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 sub-section (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.” 4. We are satisfied that the first relief sought by the petitioner through the instant writ petition would have fallen within the jurisdiction of the Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007. Thus viewed in terms of Section 34 of the Armed Forces Tribunal Act, 2007, the instant writ petition would stand automatically transferred to the Armed Forces Tribunal on the constitution thereof. 5. In view of the above, the Registry of this Court is directed to transfer the instant writ petition to the Armed Forces Tribunal under Section 34 of the Armed Forces Tribunal Act, 2007. The parties are directed to appear before the Armed Forces Tribunal, Lucknow Bench, either in person or through counsel, on 21st May, 2010. 6. If the petitioner succeeds as is declared as disabled by the Armed Forces Tribunal, it shall be open to the petitioner to file a fresh writ petition to claim allotment of a petrol pump / LPG dealership, as a disabled defence personnel, if he is so advised, in accordance with law. 7. The instant writ petition stands disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 20.04.2010 20.04.2010 G