LT. COL. VIJAYNATH JHA versus UNION OF INDIA & ORS.
[2018] 4 S.C.R. 560, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Ratio
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SUPREME COURT REPORTS
[2018] 4 S.C.R.
 LT. COL. VIJAYNATH JHA
   v.
      UNION OF INDIA & ORS.
    (Civil Appeal No. 2020 of 2013)
MAY 18, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Armed Forces Tribunal Act, 2007 :
s. 3(o) – Commissioned Officer (appellant) in Indian Army –
Inducted in an organization (DGQA) functioning under Ministry of
Defence – Refusal of permanent secondment to the appellant in
DGQA – Refusal order challenged before Armed Forces Tribunal –
Dismissed as not maintainable – On appeal, held: Enumerations
under s. 3(o) indicate that they all relate to matters relating to
conditions of service pertaining to the conditions of service of
persons subject to Army Act, Navy Act and Air Force Act – Impugned
order before the Tribunal was by a different organization –
Therefore, cannot be held to be service matter within the meaning
of s. 3(o) – ss. 27 and 33 of Army Act are also not applicable in the
present case – Army Act, 1950 – ss. 27 and 33 – Navy Act, 1957 –
Air Force Act, 1950.
Dismissing the appeal, the Court
HELD: 1. The Armed Forces Tribunal Act, 2007 has been
enacted to provide for the adjudication or trial by Armed Forces
Tribunal of disputes and complaints with respect to commission,
appointments, enrolment and conditions of service in respect of
persons subject to the Army Act, 1950, the Navy Act, 1957 and
the Air Force Act, 1950. [Para 12] [566-A-B]
2. The definition of service matters is an inclusive
definition. A look into the
enumerations as contained in Section
3(o) of 2007 Act indicates that they all relate to matters relating
to the conditions of the service of persons subject to the Army
Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950.  Last
enumeration, i.e.,  (iv) of s. 3(o) is “any other matter whatsoever”,
at first blush; it appears that the said enumeration is very wide
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which may cover all other residual categories.  But, the phrase
“any other matter whatsoever” is to take colour from the other
three enumerations and the main provision of Section 3(o).  The
pre-condition of a matter to be a service mater has to be relating
to the conditions of their service.  Thus, for a matter to be treated
as a service matter, it must relate to the conditions of their service.
[Para 14][567-C-E]
3. From the facts, it is clear that the appellant was given a
tenure of two years in Directorate General of Quality Assurance
(DGQA) in accordance with the guidelines issued by the Ministry
of Defence, Department of Defence Production. After completion
of tenure of two years, the appellant returned back to the Army.
On 06.06.2007, the appellant’s claim for permanent secondment
in the DGQA was considered by the Quality Assurance Selection
Board (QASB), wherein he was not found fit for the permanent
secondment by the QASB, with regard to which a complaint was
filed, which was rejected by the Ministry.  DGQA is an
Organisation functioning under the Ministry of Defence,
Department of Defence Production and the question of permanent
secondment of an Army Officer was considered by the Selection
Board of DGQA.  The decision not to grant permanent
secondment to the appellant in DGQA does not in any manner
affect the service conditions of the appellant as Commissioned
Officer. [Para 15][567-F-H; 568-A]
4. In the present case, the action, which was
impugned
before the Armed Forces Tribunal was the refusal of permanent
secondment of the appellant in DGQA by QASB. For permanent
secondment of a Commission Officer, there were orders issued
by the Ministry of Defence, which regulated the permanent
secondment, i.e. Government Order dated 28.10.1978, as
amended from time to time and the Government of India O.M.
dated 22.12.1993.  Non-selection of the appellant which was
impugned in the application was by a different organisation, i.e.,
by QASB of DGQA. Therefore, action impugned before the
Tribunal cannot be held to be service matter within the meaning
of Section 3(o) of the Armed Forces Tribunal Act, 2007.
[Paras 22, 23][573-C-E]
LT. COL. VIJAYNATH JHA  v. UNION OF INDIA & ORS.
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5. In the present case, Section 27 has no application. Section
27 of the Army Act, 1950 provides a remedy to aggrieved officers
to submit a complaint to the Central Government, if he has been
wronged by a commanding officer or any superior officer.  Present
is not a case where any action of commanding officer or any
superior officer of appellant was complained or questioned.
[Para 25][574-B]
6.  Section 33 of the Army Act, provides for “saving of rights
and privileges under other laws”.  The said provision indicates
that the provision saves the rights and privileges conferred on
persons subject to Army Act, by any other law for the time being
in force.”  Section 33 has no application in facts of the present
case.  Present is not a case where the appellant is claiming any
privilege conferred on persons subject to Army Act or by any
other law in force. [Paras 26, 27][574-C, F]
Union of India and Others v. Colonel G.S. Grewal (2014)
7 SCC 303 ; Mohammed Ansari v. Union of India and
Others (2017) 3 SCC 740 : [2017] 1 SCR 422 –
referred to.
Case law reference
(2014) 7 SCC 303
  referred to
Para 8
[2017] 1 SCR 422
  referred to
Para 8
CIVIL APPELLATE JURISDICTION :  Civil Appeal No. 2020
of 2013.
From the Judgment and Order dated 23.08.2012/11.09.2012 by
the Armed Forces Tribunal, Regional Bench Lucknow at Lucknow in
OA No. 104 of 2011/M.A. No. 72/2012.
 Lt. Col. Vijaynath Jha (Appellant-in-person).
Sandeep Sethi, ASG, Ms.
Alka Agrawal, M. K. Maroria, Prakash
Gautam, Advs  for the Respondents.
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The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. We have heard the appellant
appearing in-person and Shri Sandeep Sethi, learned Additional Solicitor
General for India.
2. This appeal has been filed by the appellant questioning the
judgment and order dated 23.08.2012 passed by the Armed Forces
Tribunal, Regional Bench, Lucknow by which O.A.No.104 of 2011 filed
by the appellant has been rejected as not maintainable and returned to
the appellant with liberty to file the same before the concerned authority.
3. Brief facts of the case necessary to be noted for deciding the
issues raised in the appeal are:
The appellant was commissioned in the Indian Army on 11.03.1989
in the Engineering Discipline. The appellant was subsequently selected
and inducted in the Directorate General of Quality Assurance (DGQA)
from 31.05.2004. On completion of two years the appellant was
transferred to the Directorate of Indigenization under DGEME. Quality
Assurance Selection Board (QASB) was held at DGQA organisation
for selection of the officers of the rank of Lt. Col. and Major for permanent
secondment. The appellant was not found fit for permanent secondment
by the QASB. The appellant filed a statutory complaint seeking
permanent secondment in the DGQA. The complaint was submitted at
the time when the appellant was working in the Army. The complaint
was forwarded to the Ministry of Defence. Since, the complaint pertained
to DGQA organisation, the Government of
India, Ministry of Defence,
Department of Defence Production by order dated   17.12.2007 rejected
the statutory complaint of the appellant. O.A. No.104 of 2011 was filed
by the appellant  before the Armed Forces Tribunal, Regional Bench,
Lucknow praying for quashing the order dated 17.12.2007 and issuing a
direction to the respondent to grant permanent secondment to the DGQA
organisation with all consequential benefits retrospectively.
4. A counter-affidavit  was filed in O.A. by the respondent. When
the O.A. was taken for hearing by the Armed Forces Tribunal on
23.08.2012 a preliminary objection was raised by the respondent that
the relief claimed by the applicant in the O.A. is not maintainable in the
Armed Forces Tribunal. The Armed Forces Tribunal heard the parties
on the above preliminary objection and vide order dated 23.08.2012 held
that O.A. is not maintainable. It is useful to extract paragraph 16 of the
judgment which is to the following effect:
LT. COL. VIJAYNATH JHA  v. UNION OF INDIA & ORS.
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“16. The applicant’s main grievance is that he was not
considered for permanent seconded, DGQA organisation and
we find no breach in the Army Act and the Army Rules and it
is a separate organisation with the guideline for induction,
appointment and promotion and Service HQ has no role in
grant of second tenure of (sic) permanent secondment of any
officer under the Army Act. The terms and condition of the
service officers in DGQA is not creation of the Army Act or
the Army Rules and the Armed Forces Tribunal is not the right
forum for adjudication of DGQA matters. Hence the Original
Application is not maintainable and is returned to the applicant
with the liberty to file the same before the concerned authority.”
5. A miscellaneous application was filed by the applicant before
the Tribunal seeking leave to appeal to this Court which application was
rejected on 11.09.2012. This appeal has been filed challenging the order
dated 23.08.2012 and order dated 11.09.2012.
6. A counter-affidavit has been filed in this appeal by the
respondent reiterating their objection that the relief which was claimed
by the appellant in O.A. was not maintainable before the Armed Forces
Tribunal.
7. The appellant appearing in-person submits that in DGQA
Officers are drawn from Armed Forces on tenure posting and thereafter
their cases are considered for permanent secondment as per the  Office
Memorandum dated 28.10.1978 and Office Memorandum
dated
22.12.1993. The DGQA is an organisation within the control of Ministry
of Defence and is composed of persons subject to Army Act, 1950
including civilian persons thus the Armed Forces Tribunal will have the
jurisdiction to decide the matter relating to DGQA. Relying on Section
3(o)(iv) of the Armed Forces Tribunal Act, 2007, the appellant submits
that his case is squarely covered by the said provision. The appellant
who is subject to Army Act, 1950 being a commissioned officer of Indian
Army can very well approach the Armed Forces Tribunal. Reliance on
judgment of Chandigarh Bench of Armed Forces Tribunal  in the case of
Brig.A.K. Bhutani vs. Union of India decided on 19.04.2011 has been
placed. The appellant has also relied on the provisions of Sections 27
and 33 of the Army Act, 1950 to support his submission.
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8. Shri Sandeep Sethi, learned Additional Solicitor General submits
that the claim raised by the appellant before the Armed Forces Tribunal
is not covered by the definition of the service matter as defined in Section
3(o) of the Armed Forces Tribunal Act, 2007. He submits that denial of
permanent secondment was made by DGQA Selection Board. No order
was passed against the appellant under the Army Act or the Army Rules
against which the appellant could have made a complaint before the
Armed Forces Tribunal.  Learned counsel for the respondent has placed
reliance on the judgment of this Court in Union of India and others vs.
Colonel G.S. Grewal, 2014 (7) SCC 303 and on another judgment of
this Court in Mohammed Ansari vs. Union of India and others, 2017
(3) SCC 740. He submits that service matters with regard to which
Armed Forces Tribunal has jurisdiction are service matters of Army
personnel which have been dealt under the Army Act, Army Rules and
Regulations framed therein.  The action which was impugned before
the Tribunal by the appellant was not any action of the Army which
could have been complained before the Armed Forces Tribunal. He has
further submitted that Armed Forces Tribunal has rightly rejected the
O.A. of the appellant as not maintainable.
9.  We have considered the submissions of the parties and perused
the records.
10. The only question which needs to be answered is as to whether
the Original Application filed by the appellant was
maintainable before
the Armed Forces Tribunal?
11. The main relief, which was asked by the appellant before the
Armed Forces Tribunal was to quash and set aside the order dated
17.12.2007 by which the complaint of the appellant was rejected by
Central Government.  The appellant had prayed for a  direction to the
respondents to grant permanent secondment in the DGQA Organization
with all the consequential benefits retrospectively.  The Armed Forces
Tribunal (AFT) has rejected the application of the appellant holding that
it has no jurisdiction to entertain the application. The Tribunal in Para 16
of the judgment has held that there is no breach of Army Act and the
Army Rules and the Service HQ had no role in grant of second tenure
of permanent secondment of any Army Officer in the DGQA
Organisation.  Further, the terms and conditions of the Service Officers
in DGQA is not creation of the Army Act or the Army Rules.
LT. COL. VIJAYNATH JHA  v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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12. The provisions of the Armed Forces Tribunal Act, 2007 have
to be looked into to find out as to whether the Tribunal has committed
any error in refusing to entertain the application of the appellant.  The
Armed Forces Tribunal Act, 2007 has been enacted to provide for the
adjudication or trial by Armed Forces Tribunal of disputes and complaints
with respect to commission, appointments, enrolment and conditions of
service in respect of persons subject to the Army Act, 1950, the Navy
Act, 1957 and the Air Force Act, 1950.  Section 2 deals with the
applicability of the Act, which is to the following Act:-
“2. Applicability of the Act : (1) The provisions of this Act
shall apply to all persons subject to the Army Act, 1950, the
Navy Act, 1957 and the Air Force Act, 1950.
(2) This Act shall also apply to retired personnel subject to
the Army Act, 1950 or the Navy Act, 1957 or the Air Force
Act, 1950, including their dependants, heirs and successors,
in so far as it relates to their service matters.”
13. Section 3 is a definition section.  Section 3(o) defines “service
matters”, which is to the following effect:-
“3(o)”service matters”, in relation to the persons subject to
the Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of
1957) and the Air Force Act, 1950 (45 of 1950) mean all
matters relating to the conditions of their service and shall
include—
(i).remuneration (including allowances), pension and other
retirement benefits;
(ii)tenure, including commission, appointment, enrolment,
probation, confirmation, seniority, training, promotion,
reversion, premature retirement, superannuation, termination
of service and penal deductions;
(iii)summary disposal and trials where the punishment of
dismissal is awarded;
(iv)any other matter, whatsoever, but shall not include matters
relating to—
(i)orders issued under section 18 of the Army Act, 1950 (46
of 1950) sub-section (1) of section 15 of the Navy Act, 1957
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(62 of 1957) and section 18 of the Air Force Act, 1950; (45
of 1950) and
(ii)transfers and postings including the change of place or
unit on posting whether individually or as a part of unit,
formation or ship in relation to the persons subject to the
Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957)
and the Air Force Act, 1950 (45 of 1950);
(iii)leave of any kind;
(iv)summary court martial except where the punishment is of
dismissal or imprisonment for more than three months;”
14. The provision excludes certain matters.  The present case is
not covered by excluded categories, hence that part of the provision is
not relevant for the present case.  The definition of service matters is an
inclusive definition. A look into the enumerations as contained in Section
3(o) indicates that they all relate to matters relating to the conditions of
the service of persons subject to the Army Act, 1950, the Navy Act,
1957 and the Air Force Act, 1950.  Last enumeration, i.e.,  (iv) is “any
other matter whatsoever”, at first blush; it appears that the said
enumeration is very wide which may cover all other residual categories.
But, the phrase “any other matter whatsoever” is to take colour from
the other three enumerations and the main provision of Section 3(o).
The pre-condition of a matter to be a service mater has to be relating to
the conditions of their service.  Thus, for a matter to be treated as a
service matter, it must relate to the conditions of their
service.
15. From the facts as noted above, it is clear that the appellant
was given a tenure of two years in DGQA in accordance with the
guidelines issued by the Ministry of Defence, Department of Defence
Production, as noticed above.  After completion of tenure of two years,
the appellant returned back to the Army.  On 06.06.2007, the appellant’s
claim for permanent secondment in the DGQA was considered by the
QASB, wherein he was not found fit for the permanent secondment by
the QASB, with regard to which a complaint was filed, which was rejected
by the Ministry.  DGQA is an Organisation functioning under the Ministry
of Defence, Department of Defence Production and the question of
permanent secondment of an Army Officer was considered by the
Selection Board of DGQA.  The decision not to grant permanent
secondment to the appellant in DGQA does not in any manner affect the
LT. COL. VIJAYNATH JHA  v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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service conditions of the appellant as Commissioned Officer.  The Tribunal
has placed reliance on a judgment of the Principal Bench of the Armed
Forces Tribunal in T.A. No. 125 of 2010, Maj. General S.B. Akali Etc.
Etc. Vs. Union of India & Ors. In the above case, the question of
selection of the applicant in Defence Research and Development
Organisation was under consideration.  The objection was raised that
the AFT has no jurisdiction to entertain the claim.  The Principal Bench
of the Armed Forces Tribunal, speaking through Justice A.K. Mathur,
Chairperson (as he then was), in Paragraphs 12, 13, 14 and 15 has held:-
“12. We have bestowed our best of consideration and we are
of the opinion that as per Section 2 read with Section 3(o) of
the Armed Forces Tribunal Act, 2007, this Tribunal has limited
jurisdiction to deal with the service conditions of the Army
Act and Rules, but, the present case, which relates to non-
selection of the petitioner by the DRDO for the rank of Lt.
General and it is not supersession under the Army Act or Rules,
it is under the DRDO Rules of the Office Memorandum dated
23rd November, 1989. As such, this Tribunal cannot sit over
the selection by DRDO to decide the issue whether petitioner
has been correctly superseded or not, since the service
conditions of the seconded officers under the DRDO is
regulated by Office Memorandum dated 23rd November, 1979
and it is not under the Army Act and
Rules. Therefore, this
Tribunal will have no jurisdiction to decide this case of
supersession of petitioner for promotion to the rank of Lt.
General.
13. In this view of the matter, we uphold the preliminary
objection of the learned Counsel for the respondent and direct
the Principal Registrar to remit this case back to Hon’ble
Delhi High Court to decide the matter in accordance with
law.
14. On the same lines is the case of Brig PJS Rangar & Brig
Anand Solanki (TA No. 221 of 2010). In this case the
incumbents were permanently seconded to Director General
of Quality Assurance. It is also governed by OM dated 28th
October, 1978, as amended from time to time. In this case
also the petitioners prayer is to quash the OM dated 18th
February, 2008, letter dated 15th May, 2008 and empanelment
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order dated 16th June, 2008 and direct the respondents to
give effect to the empanelment order dated 31st January, 2008
and promote them to the rank of Major General in accordance
with their seniority in the panel.
15. The service conditions are governed by the OM dated
28th October, 1978 and the non-selection of the petitioners
are by Director General Quality Assurance of Ministry of
Defence. There is no breach of any service conditions under
the Army Act and Rules. The non-selection of the petitioner is
on account of the service conditions as mentioned in OM
dated 28th October, 1978, as amended from time to time.
Therefore, the objection raised by the learned Counsel for
the respondent, in this case is also upheld and consequently
it is held that this Tribunal has no jurisdiction to interfere in
this matter and direct the Principal Registrar to remit this case
back to Hon’ble Delhi High Court to decide the matter in
accordance with law.”
16. The above judgment has been referred to and relied by the
Tribunal.
17. In the case of Union of India & Ors. Vs. Colonel G.S.
Grewal, (2014) 7 SCC 303, the same question relating lack of
jurisdiction of AFT came for consideration.  The facts have been noticed
in Paragraph 3 of the judgment, which are quoted as below:-
“3. The respondent joined the Indian Army as a Major.
Indubitably, in that capacity he was subject to the discipline
of the Army Act, 1950. It is a normal practice that the
personnel belonging to the
Armed Forces, namely, Army, Air
Force or Naval Force, are seconded to the other offices under
the Ministry of Defence, which include Department of Defence
Production, Department of Defence Research and
Development and Department of Ex-Servicemen Welfare. We
are concerned here with the Department of Defence
Production, which has Director General of Quality Assurances
(“DGQA”, for short) as well as Defence Public Sector
Undertaking (DPSU). The respondent was seconded to DGQA
on 6-11-2004 in the rank of Major. At that time, it was
temporary secondment.”
LT. COL. VIJAYNATH JHA  v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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18. A policy decision was taken, which adversely affected the
respondent’s claim for further promotion in DGQA.  He challenged the
policy decision and consequently the order.  Before the Tribunal, the
judgment of Principal Bench in Maj. General S.B. Akali Etc. Etc.
(supra) was relied on, which was brushed aside by the Tribunal.  The
Tribunal decided to entertain the application, however, observed that the
same will not be treated as a precedent.  The Union of India, aggrieved
by the said order of the Tribunal has approached the Supreme Court.
This Court considered the matter in the aforesaid light and set aside the
order of the AFT and remitted the matter. This Court held that it was
required to be examined as to whether the relief claimed was entirely
within the domain of the DGQA or for that matter, the Ministry of
Defence or it can still be treated as Service Matter Under Section 3(o).
Following was held in Para 26:-
“26. No doubt, it is open to Mr Bhati to refer to the statutory
provisions in the AFT Act or even the Army Act in support of
his submission. But many other documents of which the learned
counsel is relying upon were not part of the record before the
Tribunal. Secondly, as already pointed out above, no such
aspects are considered either by the Chandigarh Bench in
the impugned judgment or by the Principal Bench in Major
General S.B. Akali case1. We may point out that merely
because the respondent is
subject to the Army Act would not
by itself be sufficient to conclude that the Tribunal has the
jurisdiction to deal with any case brought before it by such a
person. It would depend upon the subject-matter which is
brought before the Tribunal and the Tribunal is also required
to determine as to whether such a subject-matter falls within
the definition of “service matters”, as contained in Section
3(o) of the AFT Act. In Major General S.B. Akali case1, the
Principal Bench primarily went by this consideration. The
subject-matter was promotion to the rank of Lieutenant
General and this promotion was governed by the Rules
contained in the Policy of DRDO and not under the Army
Act. Therefore, in the instant case, it is required to be examined
as to whether the relief claimed is entirely within the domain
of DGQA or for that matter, the Ministry of Defence or it can
still be treated as “service matter” under Section 3(o) of the
AFT Act and two aspects are intertwined and inextricably
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mixed with each other. Such an exercise is to be taken on the
basis of documents produced by both the sides. That has not
been done. For this reason, we deem it proper to remit the
case back to the Tribunal to decide the question of jurisdiction
keeping in view these parameters.”
19. Although in the above case, this court did not decide finally as
to whether the claim of respondent G.S. Grewal in the said case could
be entertained by AFT or not.  The Court remitted the matter to consider
as to whether the claim is entirely within the domain of the DGQA.
Thus, the jurisdiction of AFT in a case where a person claims permanent
secondment in DGQA, the nature of relief and the action challenged
have to be looked into for answering the question.  A subsequent judgment
of this Court in the case of Mohammed Ansari Vs. Union of India &
Ors., (2017) 3 SCC 740, is also relevant in this context.  In this case,
the appellant was appointed as an Assistant Executive Engineer in Border
Roads Engineering Service (BRES).  The appellant was not granted
non-functional financial upgradation for officers of Organised Group A.
He made representation to the concerned authorities, which was turned
down.  Thereafter, he filed Original Application No. 102 of 2012 before
the Central Administrative Tribunal.  The Tribunal decided the issue of
jurisdiction in favour of the appellant, which was opposed.  The Tribunal
held that it has jurisdiction to entertain the claim of the
appellant.
Aggrieved by the said order of the Tribunal, Union of India filed a Writ
Petition for quashment of the order of the Tribunal.  The High Court
framed the question as to whether a member of the GREF can be
regarded as member of Armed Forces.  The High Court after referring
to Armed Forces Tribunal Act, 2007 and Central Civil Services (Control,
Classification and Appeal) Rules, 1965 held that the Central Administrative
Tribunal had no jurisdiction and only remedy was to file an application
under Article 226.  The appellant challenging the order of the High Court
came up before this Court.  In the above context, this Court also examined
the question as to whether after coming into the force of the Armed
Forces Tribunal Act, 2007, it shall be the Armed Forces Tribunal which
shall deal with the controversy or the High Court has jurisdiction Under
Article 226 of the Constitution of India. The judgment of this Court in
Union of India & Ors. Vs. Colonel G.S. Grewal, (supra) was
extensively quoted by this Court and after quoting Paragraph 26 of the
judgment, following was stated in Para 29:-
LT. COL. VIJAYNATH JHA  v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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“29. Thus, the Court in G.S. Grewal case clearly held that
merely because the respondent is subjected to the 1950 Act
would not by itself be sufficient to conclude that the Tribunal
had jurisdiction to deal with any case brought before it by
such a person. It would depend upon the subject-matter which
is brought before the Tribunal and the Tribunal is also required
to determine as to whether such a subject-matter falls within
the definition of “service matter” as contained in Section 3(o)
of the 2007 Act.
20. This Court further laid down in Paragraphs 33 and 34:-
“33. The situation insofar as jurisdiction of the Armed Forces
Tribunal (AFT) to hear the appeals arising out of court martial
verdicts qua GREF personnel, however, appears to stand on
a different footing. It is because the provisions of Chapter VI
i.e. offences, Chapter VII i.e. punishment, Chapter X i.e.
“courts martial”, etc. apply with full force, subject to minor
exceptions and modifications here and there, as applied to
GREF. Therefore, the provisions of the 1950 Act dealing with
various punishments inflicted by way of courts martial qua
GREF personnel as applied can be agitated before AFT and
AFT shall have jurisdiction to hear appeals arising out of
courts martial verdicts. There can be no doubt that in respect
of said matters AFT shall have jurisdiction. Denial of
jurisdiction to the said Tribunal would be contrary to the 1950
Act and the provisions
engrafted under the 2007 Act. To
elaborate, right to approach AFT by the personnel of GREF
who are tried by a court martial held under the very same Act
has to be recognised. At the same time, if the punishment is
imposed on GREF personnel by way of departmental
proceedings held under the CCS (CCA) Rules, 1965 then
obviously the same cannot be agitated before AFT since the
penalty in such cases will not be one under the 1950 Act but
will be under the CCS (CCA) Rules, 1965. The distinction, as
the law exists in the present, has to be done.
34. From the aforesaid, the legal position that emerges is that
AFT shall have jurisdiction (i) to hear appeals arising out of
courts martial verdicts qua GREF personnel. To this extent
alone AFT shall have jurisdiction. At the same time, if the
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punishment is imposed on GREF personnel by way of
departmental proceedings held under the CCS (CCA) Rules,
1965 the same cannot be agitated before AFT; and (ii) AFT
shall have no jurisdiction to hear and decide grievances of
GREF personnel relating to their terms and conditions of
service or alternatively put “service matters”.
21. This Court in the above case has clearly held that AFT can
exercise jurisdiction if the action, which is complained flow from the
Army Act, 1950, the example of court martial verdict was given to which
the personnel of GREF were subject.  This Court further held that in
event, the personnel of GREF had been administratively dealt with in the
departmental proceedings held under the CCS(CCA) Rules, the same
cannot be agitated before the AFT.
22. Coming back to the facts of the present case, the action, which
is impugned before the AFT was the refusal of permanent secondment
of the appellant in DGQA by QASB. For permanent secondment of a
Commission Officer, there were orders issued by the Ministry of Defence,
which regulated the permanent secondment, i.e. Government Order dated
28.10.1978, as amended from time to time and the Government of India
O.M. dated 22.12.1993.  Non-selection of the appellant which was
impugned in the application was by a different organisation, i.e., by QASB
of DGQA.
 23. We thus are of the view that action impugned before the
Tribunal cannot be held to be service matter within the meaning of Section
3(o)
of the Armed Forces Tribunal Act, 2007.
24. The appellant, who has appeared in-person has further relied
on two provisions namely, Section 27 and Section 33 of the Army Act,
1950, which are extracted as below:-
“27. Remedy of aggrieved officers.— Any officer who deems
himself wronged by his commanding officer or any superior
officer and who on due application made to his commanding
officer does not receive the redress to which he considers
himself entitled, may complain to the Central Government in
such manner as may from time to time be specified by the
proper authority.
33. Saving of rights and privileges under laws.— The rights
and privileges specified in the preceding sections of this
Chapter shall be in addition to, and not in derogation of, any
LT. COL. VIJAYNATH JHA  v. UNION OF INDIA & ORS.
[ASHOK BHUSHAN, J.]
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other rights and privileges conferred on persons subject to
this Act or on members of the regular Army, Navy and Air
Force generally by any other law for the time being in force.”
25. Section 27 provides a remedy to aggrieved officers to submit
a complaint to the Central Government, if he has been wronged by a
commanding officer or any superior officer.  Present is not a case where
any action of commanding officer or any superior officer of appellant
was complained or questioned.  Thus Section 27 has no application.
26. Coming to Section 33 of the Act, which provides for “saving
of rights and privileges under other laws”.  The said provision indicates
that the provision saves the rights and privileges conferred on persons
subject to Army Act, by any other law for the time being in force.”  Few
examples of such privileges are as under:-
“(a) All Govt. pensions (including military persons) are immune
from attachment in the execution of the decrees of civil courts;
s. 11 of pensions Act 1871, proviso (g) to s. 60 of Code of
Civil Procedure 1908.
(b) Receipts for pay or allowances of NCOs, or Sepoys when
serving in such capacity need not be stamped; Indian Stamp
Act, schedule 1.
(c) All officers, JCOs, WOs and OR of the regular Army on
duty or on the march as well as their authorized followers,
families, horses, baggage and transport are exempt from all
tolls except certain tolls for the transit of barges etc. along
canals; s. 3 of Indian Tolls (Army and Air Force ) Act 1901.”
27. The above provision has no application in facts of the present
case.  Present is not a case where the appellant is claiming any privilege
conferred on persons subject to Army Act or by any other law in force.
Section 33, thus, has no application.
28. In view of the aforesaid discussion, we are of the view that
the Tribunal committed no error in holding that the application filed by
the appellant was not maintainable before the AFT.  AFT has returned
the application of the applicant to take proceeding before competent
authorities.  In result, the appeal is dismissed.
Kalpana K. Tripathy
               Appeal dismissed.
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ADARSH COOPERATIVE HOUSING SOCIETY LTD.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 129 Of 2018)
FEBRUARY 16, 2018
[DIPAK MISRA, CJI AND SANJAY KISHAN KAUL, J.]
Constitution of India – Art.32 – Petitioner sought directions
for prohibiting the respondents Nos. 4 to 7 from releasing/screening/
publishing feature film with direct or indirect references to the
petitioner society’s land/building/membership – Petitioner alleged
that film has projected the society in an unacceptable manner and
that is likely to have some impact on the litigations which are pending
apart from affecting the reputation of the members of the society –
Held: A film with regard to a particular situation does not affect the
trial or the exercise of ‘error jurisdiction’ by the  appellate court –
The Courts of law decide the lis on the basis of the materials brought
on record and not on the basis of imagination as is projected in
language of the theatre or a script on the celluloid – The doctrine
of sub-judice may not be elevated to such an extent that some kind
of reference or allusion to a member of a society would warrant the
negation of the right to freedom of speech and expression which is
an extremely cherished right enshrined under the Constitution –
The right to freedom of speech and expression is not absolute but
any restriction imposed thereon has to be extremely narrow and
within reasonable parameters – In instant case, the grant of
certificate
by the Central Board of Film Certification (CBFC), after
consulting with the authorities of the Army, should dispel any
apprehension of the members or the society – Cinematograph Act,
1952.
Dismissing the writ petition, the Court
HELD : 1. A film with regard to a particular situation does
not affect the trial or the exercise of ‘error jurisdiction’ by the
appellate court.  The courts of law decide the lis on the basis of
the materials brought on record and not on the basis of imagination
as is projected in the language of the theatre or a script on the
celluloid. [Para 8] [580-F-G]
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2. In human history, there have been many authors who
expressed their thoughts in their own words, phrases,
expressions and also created whimsical characters which no
ordinary man would conceive of. Further, a thought provoking
film should never mean that it has to be didactic or in any way
puritanical, rather it can be expressive and provoking the
conscious or the sub- conscious thoughts of the viewer and if
there has to be any limitation on it, such a limitation has to be as
per the prescribed law. [Para 10] [581-D-E]
3. The doctrine of sub-judice may not be elevated to such
an extent that some kind of reference or allusion to a member of
a society would warrant the negation of the right to freedom of
speech and expression which is an extremely cherished right
enshrined under the Constitution. The moment the right to
freedom of speech and expression is atrophied, not only the right
but also the person having the right gets into a semi coma.
However, the said right is not absolute but any restriction imposed
thereon has to be extremely narrow and within reasonable
parameters.  In the case at hand, the grant of certificate by the
CBFC, after consulting with the authorities of the Army, should
dispel any apprehension of the members or the society. [Para 17]
[583-C-E]
Viacom 18 Media Private Limited & Ors. v. Union of
India & Ors. 2018 (1) SCALE 382 – relied on.
R. K. Anand v. Registrar, Delhi High Court (2009) 8
SCC
106 : [2009] 11 SCR 1026; State of Maharashtra
v. Rajendra Jawanmal Gandhi (1997) 8 SCC 386 :
[1997] 4 Suppl. SCR 68; Mushtaq Moosa Tarain v.
Government of India (2005) SCC Online Bom. 385;
Nachiketa Walhekar v. Central Board of Film
Certification & Anr. (2018) 1 SCC 778; Devidas
Ramachandra Tuljapurkar v. State of Maharashtra &
Ors. (2015) 6 SCC 1 : [2015] 7 SCR 853 – referred
to.
Kingsley International Pictures Corporation v. Regents
of the University of the State of New York 360 U.S. 684,
688-89 (1959) – referred to.
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Case Law Reference
[2009] 11 SCR 1026
referred to
Para 4
[1997] 4 Suppl. SCR 68
referred to
Para 5
2018 (1) SCALE 382
relied on
Para 8
(2018) 1 SCC 778
referred to
Para 9
[2015] 7 SCR 853
referred to
Para 13
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
129 of 2018.
Under Article 32 of the Constitution of India.
Sanjay R. Hegde, Sr. Adv., Ravindra Keshavrao Adsure,
Ms. Himanshi Gupta,  Sagar N. Pahune Patil, Pranjal  Kishore, Advs.
for the Petitioner.
DIPAK MISRA, CJI 1.The petitioner, a registered society, has
preferred this petition under Article 32 of the Constitution of India seeking
appropriate directions for prohibiting the respondent Nos. 4 to 7 from
releasing/screening/publishing feature film, namely, ‘Aiyaary’ with direct
or indirect references to the petitioner society’s land/building/membership,
for such an action is bound to affect the Right to Life under Articles 14
and 21 of the Constitution. It is also prayed that the said respondents
should be commanded to delete all those parts in the ensuing feature
film which has direct or indirect references to the society in question.
2. It is contended by Mr. Sanjay R. Hegde, learned senior counsel
for the petitioner, that the film, which is going to be released, has projected
the society in an unacceptable manner and that is likely to have some
impact on the litigations which are pending apart from affecting the
reputation of the members of the society. A newspaper article has been
brought
on record to highlight how the script has been written and how
the dialogues have the innuendos to reflect on the image of the society
as well as its members.  Learned senior counsel has highlighted that the
members of the society have built a reputation which is very dear to
their life and if the film is allowed to be released, the same shall destroy
the established reputation and the posterity will remember the image
projected in the film but not the real image which the members have.
According to Mr. Hegde, the “reel reflection” will garner the mindset of
the people rather than the “real life lived”.
ADARSH COOPERATIVE HOUSING SOCIETY LTD. v.
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3. It is not in dispute that the film ‘Aiyaary’ has already been
given the requisite certificate by the Central Board of Film Certification
(for short ‘CBFC’) under the Cinematograph Act, 1952 (for brevity,
‘the Act’) and the said Board has also taken the suggestions from the
competent authorities of the Army as a measure of caution.  There can
be no shadow of doubt that the Censor Board can grant a certificate and
in the said decision making process, it can also consult the persons who
can assist it to arrive at the condign conclusion. We do not intend to
name the number of authorities which have been referred to in the
pleadings.
4. Learned counsel had laid emphasis on R.K. Anand v. Registrar,
Delhi High Court1 and the paragraph that has been commended to us
is extracted below:-
“The impact of television and newspaper coverage on a person’s
reputation by creating a widespread perception of guilt regardless
of any verdict in a court of law.  During high publicity cases, the
media are often accused of provoking an atmosphere of public
hysteria akin to a lynch mob which not only makes a fair trial
impossible but means that regardless of the result of the trial, in
public perception the accused is already held guilty and would not
be able to live the rest of their life without intense public scrutiny.”
5. A passage has also been referred to from the decision in State
of Maharashtra v. Rajendra Jawanmal Gandhi2  which
states thus:-
“There is procedure established by law governing the conduct of
trial of a person accused of an offence.  A trial by press, electronic
media or public agitation is very antithesis of rule of law.  It can
well lead to miscarriage of justice.”
6. Our attention has been drawn to a few passages from the
judgment of the Bombay High Court in Mushtaq Moosa Tarain v.
Government of India3. As Mr. Hegde has laid immense stress on the
paragraphs from the said judgment, we think it appropriate to reproduce
the same:-
“56. The Censor Board has framed guidelines. These guidelines
are framed under section 5b(2) of the cinematography act. One
1 (2009) 8 SCC 106
2 (1997) 8 SCC 386
3 (2005) SCC Online Bom. 385
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of the guiding factors is that visuals or words “involving defamation
of an Individual or Body of Individual or contempt of court are not
presented. These guidelines ensure that nothing should be
permitted which amounts to interfering with the administration of
justice. It is not as if the Censor Board has to be satisfied that
visuals or scenes have in fact interfered with or obstructed the
course of justice or have adverse effect thereon. In other words,
it is not as if the matter has to be decided by the Censor Board on
the touch stone of Law of Contempt. Similarly, “defamation” as
contemplated by the guidelines should not be construed as
committing of tort of defamation as understood in law. Broadly,
these guidelines are for the purposes of giving effect to the well
settled principle that every right has a corresponding duty or
obligation.
xxx
xxx
xxx
64. In the case of Hutchison, Ex parte McMAHON, reported in
(1936) ALL ENGLAND LAW REPORTS ANNOTATED (VOL.
2) 1514, the King’s Bench has observed thus:-
“Proprietors of cinemas and distributors of films must realise that,
if they want to produce these sensational films, they must take
care in describing them not to use any language likely to bring
about any derangement in the carriage of justice.”
65. Grant of injunction or restraint order is not a gagging writ in
the facts of this case. The Petitioner has made out a strong prima-
facie case inasmuch as fair trial, which is part of Rule of Law and
Administration of Justice, is an aspect which must prevail over
individual’s right of free speech and expression. People’s right to
know cannot be stretched to such an extent as would make
mockery of Rule of Law. Petitioner’s right to fair and impartial
trial must outweigh all such previleges and expectations. The
balance of convenience is definitely in favour of an injunction
inasmuch as the restraint against exhibition is for limited duration
and the Petitioner’s right as above as well as public interest is in
favour of such restraint. The Respondents have a commercial
and business interest which is secondary. The loss to the
Petitioner’s dignity and reputation is enormous. It would be
irreparable as the viewers may form an opinion about his guilt.
ADARSH COOPERATIVE HOUSING SOCIETY LTD. v.
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66. Before we conclude, we cannot but observe that this trial is
one of those important trials even in terms of history and in terms
of reconciliation of people. If the people have to have a belief in
truth and justice as abiding values having a primacy over force
and violence, it is just and necessary that justice must not merely
be done but must also appear to have been done. If a society
wants to do justice and thereby have peace and stability, then the
stream of justice has got to be maintained clean to the extent
possible. It is equally essential that the dignity of any individual,
even though he may be an accused, has to be maintained as far
as it could be. Looking at it from this point of view as well, we
cannot but hold that the release of the film will have a prejudicial
effect on fair administration of justice as well as on the image of
the accused. We, therefore, hold that the Petitioner has made out
a case for the injunction that he has sought on the ground that the
release of the film would constitute contempt of court and his
defamation.”
7. Relying on the said judgment, it is contended by Mr. Hegde that
as the matter is sub-judice, the release of the movie is likely to affect the
stream of justice and order of stay of the release of the movie is called
for.  With all the humility at his command, Mr. Hegde has relied upon the
decision of the Bombay High Court which we have referred to
hereinabove.  We
do not intend to comment on the said decision of the
Bombay High Court because we are not aware whether the lis travelled
to this Court or not and in any case, the principle stated therein cannot
always be a guiding factor. Suffice it to say, the said case has to rest on
its own facts.
8. As it seems to us, a film with regard to a particular situation
does not affect the trial or the exercise of ‘error jurisdiction’ by the
appellate court.  The courts of law decide the lis on the basis of the
materials brought on record and not on the basis of imagination as is
projected in the language of the theatre or a script on the celluloid.  In
this regard, we may reproduce a paragraph from the order passed in
Viacom 18 Media Private Limited & Ors. v. Union of India & Ors.4
which deals with the release of the film, namely, ‘Padmaavat’.  It reads
as follows:-
4 2018 (1) SCALE 382
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“It has to be borne in mind, expression of an idea by any one
through the medium of cinema which is a public medium has its
own status under the Constitution and the Statute.  There is a
Censor Board under the Act which allows grant of certificate for
screening of the movies.  As we scan the language of the Act and
the guidelines framed thereunder it prohibits use and presentation
of visuals or words contemptuous of racial, religious or other
groups.  Be that as it may.  As advised at present once the
Certificate has been issued, there is prima facie a presumption
that the concerned authority has taken into account all the guidelines
including public order.”
9. In Nachiketa Walhekar v. Central Board of Film
Certification & Anr.5, this Court stated that a film or a drama or a novel
or a book is a creation of art and that an artist has his own freedom to
express himself in a manner which is not prohibited in law. The Court
also stated that prohibitions should not by implication crucify the rights
of expressive minds.
10. The Court noted that in human history, there have been many
authors who expressed their thoughts in their own words, phrases,
expressions and also created whimsical characters which no ordinary
man would conceive of. Further, the Court stated that a thought provoking
film should never mean that it has to be didactic or in any way puritanical,
rather it can be expressive and provoking the conscious or the sub-
conscious thoughts of the
viewer and if there has to be any limitation on
it, such a limitation has to be as per the prescribed law.
11. Elaborating the same, we may add that there can be
multitudinous modes, manners and methods to express a concept.  One
may choose the mode of silence to be visually eloquent and another may
use the method of semi-melodramatic approach that will have impact. It
is the individual thought and approach which cannot be curbed.
12. Mr. Hegde, learned senior counsel, has also suggested that
though the freedom of speech and expression should not be curtailed,
yet this Court, on certain occasions, has protected the image and reputation
of the individuals by giving priority to the image of the person in society.
13. In this regard, he has drawn inspiration from Devidas
Ramachandra Tuljapurkar v. State of Maharashtra & Ors.6. It is
5(2018) 1 SCC 778
6 (2015) 6 SCC 1
ADARSH COOPERATIVE HOUSING SOCIETY LTD. v.
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necessary to clarify here that in the said case, the question was with
regard to poetic license wherein the Court observed that as far as the
words “poetic license” are concerned, it can never remotely mean a
license as understood in the language of law as there is no authority
which gives a license to a poet; for the words of the poet come from the
realm of literature. Further elaborating, the Court stated that the poet
assumes his own freedom which is allowed to him by the fundamental
concept of poetry and he is free to depart from the reality; hide ideas
beyond myths which can be absolutely unrealistic or put serious ideas in
satires, ifferisms, notorious repartees; take aid of analogies, metaphors,
similes in his own style, compare life with sandwiches that is consumed
everyday or convey life is like peeling of an onion, or society is like a
stew define ideas that can balloon into the sky never to come down and
cause violence to logic at his own fancy.
14. In this backdrop, the Court opined that a ‘poetic license’ can
have individual features, deviate from norms, or other collective
characteristics or it may have a linguistic freedom wider than what a
syntax sentence would encompass. We may note with profit that the
controversy travelled to this Court as the trial court had framed charges
under Section 292 IPC against the appellants and the High Court had
declined to interfere.  This Court observed that the
language employed
in the poem “I met Gandhi” was prima facie obscene because of the
language employed relating to Mahatma Gandhi, the father of the Nation.
Though the Court quoted some stanzas of the poem, yet it thought it
wise not to reproduce the said stanzas in entirety because of the words
used.  The Court did not adjudicate upon the entire controversy as the
author of the poem had not challenged the order.  The concept of obscenity
was judged in the background of “contemporary community standards
test” and the Court ruled that when the name of Mahatma Gandhi is
alluded or used as a symbol and obscene words are used, the concept of
“degree test” in addition to contemporary community standards test is
invokable.  The Court further elaborated by stating that the “contemporary
community standards test” becomes applicable with more vigour, in a
greater degree and in an accentuated manner.  The Court was of the
view that what can otherwise pass the contemporary community
standards test would not be able to do so if the name of Mahatma Gandhi
is used as a symbol or allusion or surrealistic voice to put words or to
show him doing such acts which are obscene.
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15. While so stating, the Court concluded by leaving it to the poet
to put his defense at the trial explaining the manner and the context in
which he has used the words. In this context, the Court further opined
that the view of the High Court pertaining to the framing of charge
under Section 292 IPC cannot be said to be flawed.
16. In our considered opinion, the reliance placed on the above-
mentioned judgment by Mr. Hegde, learned senior counsel, does not
render any assistance.  The law laid down in the said case rests on the
facts depicted therein.
17. At this juncture, we may also state that the doctrine of sub-
judice may not be elevated to such an extent that some kind of reference
or allusion to a member of a society would warrant the negation of the
right to freedom of speech and expression which is an extremely cherished
right enshrined under the Constitution.  The moment the right to freedom
of speech and expression is atrophied, not only the right but also the
person having the right gets into a semi coma. We may hasten to add
that the said right is not absolute but any restriction imposed thereon has
to be extremely narrow and within reasonable parameters.  In the case
at hand, we are obligated to think that the grant of certificate by the
CBFC, after consulting with the authorities of the Army, should dispel
any apprehension of the members or the society.
18. In this context, we may appositely reflect on an eloquent
passage from Kingsley
International Pictures Corporation v. Regents
of the University of the State of New York7 wherein Potter Stewart
stated:-
“It is contended that the State’s action was justified because the
motion picture attractively portrays a relationship which is contrary
to the moral standards, the religious precepts, and the legal code
of its citizenry. This argument misconceives what it is that the
Constitution protects. Its guarantee is not confined to the
expression of ideas that are conventional or shared by a majority.
It protects advocacy of the opinion that adultery may sometimes
be proper, no less than advocacy of socialism or the single tax.
And in the realm of ideas it protects expression which is eloquent
no less than that which is unconvincing.”
7 360 U.S. 684, 688-89 (1959)
ADARSH COOPERATIVE HOUSING SOCIETY LTD. v.
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19. The nature of the present matter compels us to recapitulate
that the human history is replete with struggles to get freedom, be it
physical or mental or spiritual. The creativity of a person impels him not
to be tied down or chained to the established ideals or get enslaved to
the past virtues and choose to walk on the trodden path.  He aspires to
rejoice with the new ideas and exerts himself to achieve the complete
fruition. That is the determination for moving from being to becoming,
from existence to belonging and from ordinary assumption to sublime
conception.  The creative intelligence kicks his thinking process to live
without a fixed target but toying with many a target.
20. We would be failing in our duty if we do not note the last plank
of submission of Mr. Hegde. He would suggest that this Court may
direct the producer and director of the film to add a disclaimer so that no
member of the society would ultimately be affected by the film. The
aforesaid submission on a first blush may seem quite attractive but on a
slightly further scrutiny, if we allow ourselves to say so, has to melt into
oblivion. Whether there is the necessity of “disclaimer” or not has to be
decided by the Censor Board which is the statutory authority that grants
the certificate.  In fact, when a disclaimer is sought to be added, the
principle of natural justice is also attracted. To elaborate, the producer
or director is to be
afforded an opportunity of hearing. The Court should
not add any disclaimer for the asking. Addition of a disclaimer is a different
concept altogether. It is within the domain of the authority to grant
certificate and to ask the director to add a disclaimer in the beginning of
the movie to avoid any kind of infraction of guidelines. Though the
suggestion is made in right earnest by Mr. Sanjay Hegde, yet we are
impelled not to accept the same.
21. Consequently, the writ petition, sans merit, stands dismissed.
Ankit Gyan
                     Writ Petition dismissed.