Case: BALKRISHNA RAM Vs. UNION OF INDIA

882 ). The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra). 15. Ms. Dwivedi, placed reliance on the observations made in Major General Shri Kant Sharma (supra) that, ?jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of the civil court and the High Court so far as it relates to suit relating to condition of service of the persons?, subject to the provisions of the Act. It is clear that the intention of the court was not to hold that the tribunal is a substitute of the High Court in so far as its writ jurisdiction is concerned because that is specifically excluded under Section 14(1) of the Act. We cannot read this one sentence out of context. It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court. 16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615 the Constitution Bench of this Court, of which one of us (Deepak Gupta, J. was a member), clearly held that though these tribunals may be manned by retired judges of High Courts and Supreme Court, including those established under Articles 323-A and 323-B of the Constitution, they cannot seek equivalence with the High Court or the Supreme Court. The following observations are relevant:-?194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323- B of the Constitution cannot seek equivalence with High Court or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he / she no longer enjoys the Constitutional status, the statutory position occupied by him / her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme.? 17. The contention of the learned counsel for the appellant, if accepted, would strike at the very root of judicial independence and make the High Court subordinate to the AFT. This can never be the intention of the Legislature. The High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. It is obvious that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within the High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench. This appeal to the Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies the appeal is heard by two or more judges of the High Court. We cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. Therefore, we reject the contention that an intra court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is required to be transferred under Section 34 of the Act. 18. As far as the merits of the case are concerned, the undisputed fact is that the appellant could not clear the aptitude test. It has been urged that even if he could not clear the aptitude test, he should have been considered for appointment in some other post before being discharged from service. It is also urged that in the order of discharge it is not indicated that the case of the appellant was considered for such alternative service. 19. In our view, it is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, we find that before discharge, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. We are not at all in agreement with this submission. Section 14(1) of the Act quoted hereinabove clearly provides that the AFT will exercise powers of all courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and 227 of the Constitution of India. Section 34 is very carefully worded. It states that ‘every suit?, or ‘other proceedings? pending before any court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the AFT with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution. We are not going into the question as to whether the Tribunal is amenable to the supervisory jurisdiction of a High Court under Article 227 of the Constitution but there can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the AFT. True it is, that since an appeal lies to the Supreme Court against an order of the AFT, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court13. Reliance placed by Ms. Dwivedi on the judgment of this Court in Major General Shri Kant Sharma (supra) is entirely misplaced. The issue before this Court in this case was whether the High Court was justified in entertaining writ petitions against the orders of the AFT. This is a judgment by two judges and obviously it cannot overrule the judgment of the Constitution Bench in L. Chandra Kumar (supra). The Division Bench, after referring to various judgments including the judgment in L. Chandra Kumar (supra), summarised its findings in para 36 as follows:-?36. The aforesaid decisions rendered by this Court can be summarised as follows:(i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India(ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation(iv) The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.?What this Court held was that though the power of the High Court under Article 226 of the Constitution is a basic essential feature of the Constitution which cannot be taken away, the High Court should not entertain a petition under Article 226 of the Constitution if any other effective alternative remedy is available to the aggrieved person or the statute, under which the action complained of has been taken, itself contains a maxim for redressal of grievance. We have our doubt, with regard to the correctness of the directions (iii) & (iv) of the judgment, since in our opinion it runs counter to the judgment rendered by the Constitution Bench14. It would be pertinent to add that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available (Union of India vs. T.R. Varma AIR 1957 SC 882  ). The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra)14. It would be pertinent to add that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The writ courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available (Union of India vs. T.R. Varma AIR 1957 SC 882  ). The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in L. Chandra Kumar (supra)15. Ms. Dwivedi, placed reliance on the observations made in Major General Shri Kant Sharma (supra) that, ?jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of the civil court and the High Court so far as it relates to suit relating to condition of service of the persons?, subject to the provisions of the Act. It is clear that the intention of the court was not to hold that the tribunal is a substitute of the High Court in so far as its writ jurisdiction is concerned because that is specifically excluded under Section 14(1) of the Act. We cannot read this one sentence out of context. It is true that proceedings on the original side even in exercise of writ jurisdiction are to be transferred to the tribunal for decision by the AFT because the original jurisdiction now vests with the AFT. This however, does not mean that the AFT can exercise all the powers of the High Court16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors. 2019 (15) SCALE 615     the Constitution Bench of this Court, of which one of us (Deepak Gupta, J. was a member), clearly held that though these tribunals may be manned by retired judges of High Courts and Supreme Court, including those established under Articles 323-A and 323-B of the Constitution, they cannot seek equivalence with the High Court or the Supreme Court. The following observations are relevant:-?194. Furthermore, that even though manned by retired judges of High Courts and the Supreme Court, such Tribunals established under Article 323-A and 323- B of the Constitution cannot seek equivalence with High Court or the Supreme Court. Once a judge of a High Court or Supreme Court has retired and he / she no longer enjoys the Constitutional status, the statutory position occupied by him / her cannot be equated with the previous position as a High Court or a Supreme Court judge. The rank, dignity and position of Constitutional judges is hence sui generis and arise not merely by their position in the Warrant of Precedence or the salary and perquisites they draw, but as a result of the Constitutional trust accorded in them. Indiscriminate accordance of status of such Constitutional judges on Tribunal members and presiding officers will do violence to the very Constitutional Scheme.?17. The contention of the learned counsel for the appellant, if accepted, would strike at the very root of judicial independence and make the High Court subordinate to the AFT. This can never be the intention of the Legislature. The High Court is a Constitutional Court constituted under Article 214 of the Constitution and are courts of record within the meaning of Article 215. It is obvious that the order of the High Court cannot be challenged before any other forum except the Supreme Court. The provision of intra-court appeal whether by way of Letters Patents or special enactment is a system that provides for correction of judgments within the High Courts where a judgment rendered by a single judge may be subject to challenge before a Division Bench. This appeal to the Division Bench does not lie in all cases and must be provided for either under the Letters Patent or any other special enactment. Even where such appeal lies the appeal is heard by two or more judges of the High Court. We cannot envisage a situation where an appeal against the order of a sitting judge of the High Court is heard by a Tribunal comprising of one retired judge and one retired Armed Forces official. Therefore, we reject the contention that an intra court appeal from the judgment of a single judge of the High Court to a Division Bench pending in the High Court is required to be transferred under Section 34 of the Act18. As far as the merits of the case are concerned, the undisputed fact is that the appellant could not clear the aptitude test. It has been urged that even if he could not clear the aptitude test, he should have been considered for appointment in some other post before being discharged from service. It is also urged that in the order of discharge it is not indicated that the case of the appellant was considered for such alternative service19. In our view, it is not necessary to indicate in the order of discharge whether such consideration took place or not. From the records of the case, we find that before discharge, the name of the appellant was considered for two categories but unfortunately the appellant could not meet the height criteria for appointment to either of the posts. Thus, this clearly shows that his case was considered as per the extant policy but he was not fit for appointment11. While holding so, we place reliance upon a judgment of a Constitution Bench of this Court in L. Chandra Kumar vs. Union of India & Ors.(1997) 3 SCC 261     This court clearly held that judicial review is a part of the basic structure of the Constitution and the power of judicial review vested in the High Courts and the Supreme Court cannot be taken awayThe aforesaid observations in L. Chandra Kumar (supra) leave no manner of doubt that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the Constitution11. While holding so, we place reliance upon a judgment of a Constitution Bench of this Court in L. Chandra Kumar vs. Union of India & Ors.(1997) 3 SCC 261     This court clearly held that judicial review is a part of the basic structure of the Constitution and the power of judicial review vested in the High Courts and the Supreme Court cannot be taken awayThe aforesaid observations in L. Chandra Kumar (supra) leave no manner of doubt that the power of judicial review vests with the High Court even with regard to orders passed by the AFT and this power is part of the basic structure of the