Case: Union Of India  Vs. Major General Shri Kant Sharma

Union of India and others are the appellants in all these appeals except in C.A.No.7338, C.A.No. 7399 of 2013 and C.A.No.96/2014 wherein they are the respondents. The respondents in all these appeals except the three mentioned above are-Army Personnel who moved before the Tribunal for adjudication or trial of disputes and complaints with respect to condition of service. Having not granted relief, the Army personnel assailed the order passed by the Tribunal before the respective High Courts under Article 226 of the Constitution. The appellant in C.A.No.7338 of 2013 on being aggrieved by the order passed by the Armed Forces Tribunal, Regional Bench, Chennai challenged the same before the High Court of Judicature of Andhra Pradesh at Hyderabad. In the cases in hand except C.A.No.7338 of 2013 and C.A.No.96 of 2014 the High Court entertained the writ petitions and adjudicated the disputes. The High Court having granted relief after reversing the order of Tribunal, the Union of India has challenged the same. In C.A.No.7338 of 2013 and C.A.No.96 of 2014, the appellants-Army Personnel have challenged the orders by which High Courts refused to entertain their writ petitions. In C.A. No. 7399 of 2013, the appellant-Army Personnel has challenged the order of Delhi High Court allowing the writ petition of respondent No.2 therein.

Reasoning:
12. A plain reading of the above provisionsA remedy of appeal to Supreme Court against any final order passed by the Tribunal under Section 30 with the leave of the Tribunal is provided under Section 31 of the Act.ii In case leave is refused by the Tribunal, an application to the Supreme Court for leave can be made as provided under sub-section (1) and (2) of Section 31 of the Act.iii Against any order or decision of the Tribunal made under Section 19 in exercise of its jurisdiction to punish for contempt, an appeal under sub-section (2) of Section 30 lies to the Supreme Court as of right.Therefore, it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court so far as it relates to suit relating to condition of service of the persons subject to Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, which are special laws enacted by the Parliament by virtue of exclusive legislative power vested under Article 246 of the Constitution of India read with Entries 1 & 2 of List I of the Seventh Schedule.Judicial review under Article 32 and 226 is a basic feature of the Constitution beyond the plea of amendability. While under Article 32 of the Constitution a person has a right to move before Supreme Court by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution, no fundament right can be claimed by any person to move before the High Court by appropriate proceedings under Article 226 for enforcement of the rights conferred by the Constitution or Statute.From the aforesaid decisions of this Court in L. Chandra and S.N. Mukherjee, we find that 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 Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India.