BALKRISHNA RAM versus UNION OF INDIA AND ANR.

[2020] 2 S.C.R. 581

BALKRISHNA RAM

UNION OF INDIA AND ANR.

(Civil Appeal No. 131 of 2020)

JANUARY 09, 2020

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Armed Forces Tribunal Act, 2007:

ss. 14(1) and 34 – Transfer of pending cases to Armed forcesTribunal – Whether an appeal against the order of Single Judge ofa High Court deciding case related to armed forces personnel,pending before High Court, can be transferred to the Armed ForcesTribunal – Held: As per s. 14(1), Armed Forces Tribunal can exercisepowers of all the Courts except the Supreme Court or High Courtexercising jurisdiction under Arts. 226 or 227 – Judicial review isbasic structure – Power of judicial review vested with the HighCourt cannot be taken away – Power of Judicial review vests withthe High Court even with regard to the orders passed by the Tribunal– High Court being constitutional court, its order cannot bechallenged before any court other than Supreme Court – Thereforeintra-court appeal pending before Division Bench of High Courtneed not be transferred u/s. 34.

Jurisdiction:

Writ jurisdiction of High Court – Scope of – Held: WritCourts normally refrain from exercising their extra-ordinary power,if alternative efficacious remedy is available – This rule is rule ofprudence and not rule of law – Existence of alternative remedydoes not oust the jurisdiction of High Court.

Jurisdiction of Armed Forces Tribunal – Held: Transfer ofproceedings on the original side including cases in exercise of writjurisdiction, does not mean that the Tribunal can exercise all thepowers of the High Court.

Service Law:

Discharge from service – Challenged – Plea that even if thecandidate could not clear the aptitude test, he should have been581

Aconsidered for appointment in some other post – Held: The candidatewas considered for appointment to two categories, but could notmeet the height criteria in either of the posts – The candidate wasnot fit for appointment.

Dismissing the appeal, the CourtB

HELD : 1.1 Section 14(1) of the Armed Forces TribunalAct, 2007 clearly provides that the Armed Forces Tribunal (AFT)will exercise powers of all courts except the Supreme Court orHigh Court exercising jurisdiction under Article 226 and 227 ofthe Constitution of India. Section 34 is very carefully worded. ItCstates that ‘every suit’, or ‘other proceedings’ pending beforeany court including High Court immediately before theestablishment of the Tribunal shall stand transferred on that dayto the Tribunal. The Legislature has clearly not vested the AFTwith the power and jurisdiction of the High Court to be exercisedunder Article 226 of the Constitution. There can be no mannerDof doubt that the High Court can exercise its writ jurisdictioneven in respect of orders passed by the AFT. True it is, thatsince an appeal lies to the Supreme Court against an order of theAFT, the High Court may not exercise their extraordinary writjurisdiction because there is an efficacious alternative remedyEavailable but that does not mean that the jurisdiction of the HighCourt is taken away. In given circumstance, the High Courtmay and can exercise its extraordinary writ jurisdiction evenagainst the orders of AFT. [Para 10][587-F-G; 588-A-B]

1.2 Judicial review is part of the basic structure of theFConstitution and the power of judicial review vested in the HighCourts and the Supreme Court cannot be taken away. The powerof judicial review vests with the High Court even with regard toorders passed by the AFT and this power is part of the basicstructure of the Constitution. [Para 11][588-C; 589-E]

G1.3 The principle that the High Court should not exerciseits extraordinary writ jurisdiction when an efficacious alternativeremedy is available, is rule of prudence and not rule of law.The writ courts normally refrain from exercising theirextraordinary power if the petitioner has an alternative efficacious

remedy. The existence of such remedy however does not meanthat the jurisdiction of the High Court is ousted. At the sametime, it is well settled principle that such jurisdiction shouldnot be exercised when there is an alternative remedy available.The rule of alternative remedy is rule of discretion and not arule of jurisdiction. Merely because the Court may not exerciseits discretion, is not ground to hold that it has no jurisdiction.There may be cases where the High Court would be justified inexercising its writ jurisdiction because of some glaring illegalitycommitted by the AFT. One must also remember that thealternative remedy must be efficacious and in case of Non-Commissioned Officer (NCO), or Junior Commissioned Officer(JCO); to expect such person to approach the Supreme Courtin every case may not be justified. It is extremely difficult andbeyond the monetary reach of an ordinary litigant to approachthe Supreme Court. Therefore, it will be for the High Court todecide in the peculiar facts and circumstances of each casewhether it should exercise its extraordinary writ jurisdiction ornot. There cannot be blanket ban on the exercise of suchjurisdiction because that would effectively mean that the writ courtis denuded of its jurisdiction to entertain such writ petitions.[Para 14][593-G-H; 594-A-D]

1.4 It is true that proceedings on the original side even inexercise of writ jurisdiction are to be transferred to the Tribunalfor decision by the AFT because the original jurisdiction nowvests with the AFT. This however, does not mean that the AFTcan exercise all the powers of the High Court. [Para 15][594-F]

1.5 The contention of the appellant, if accepted, would strikeat the very root of judicial independence and make the High Courtsubordinate to the AFT. This can never be the intention of theLegislature. The High Court is Constitutional Court constitutedunder Article 214 of the Constitution and are courts of recordwithin the meaning of Article 215. It is obvious that the order ofthe High Court cannot be challenged before any other forumexcept the Supreme Court. The provision of intra-court appealwhether by way of Letters Patents or special enactment is asystem that provides for correction of judgments within the High

ACourts where judgment rendered by Single Judge may besubject to challenge before Division Bench. This appeal to theDivision Bench does not lie in all cases and must be provided foreither under the Letters Patent or any other special enactment.Even where such appeal lies, the appeal is heard by two or morejudges of the High Court. The Court cannot envisage situationBwhere an appeal against the order of sitting Judge of the HighCourt is heard by Tribunal comprising of one retired judge andone retired Armed Forces official. Therefore, an intra court appealfrom the judgment of single judge of the High Court to DivisionBench pending in the High Court is not required to be transferredCunder Section 34 of the Act. [Para 17][595-D-H]

L Chandra Kumar v. Union of India & Ors. (1997) 3SCC 261 : [1997] 2 SCR 1186 ; Rojer Mathew v. SouthIndian Bank Ltd. & Ors. 2019 (15) SCALE 615– followed.

DUnion of India and Others v. Major General Shri KantSharma and Another (2015) 6 SCC 773 : [2015] 4SCR 676 – held inapplicable.

Union of India v. T.R. Varma AIR 1957 SC 882 : [1958]SCR 499 – referred to.E

2. The appellant could not clear the aptitude test. It hasbeen urged that even if he could not clear the aptitude test, heshould have been considered for appointment in some other postbefore being discharged from service. It is also urged that in theorder of discharge it is not indicated that the case of the appellantFwas considered for such alternative service. It is not necessaryto indicate in the order of discharge whether such considerationtook place or not. From the records of the case, it is found thatbefore discharge, the name of the appellant was considered fortwo categories but the appellant could not meet the height criteriaGfor appointment to either of the posts. Thus, this clearly showsthat his case was considered as per the extant policy but he wasnot fit for appointment. In this view of the matter, there is nomerit in the appeal. [Paras 18 and 19][596-A-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 131 of2020.

From the Judgment and Order dated 20.12.2016 of the High Courtof Judicature at Allahabad in Special Appeal No. 740 of 2008.

Ms. Preetika Dwivedi, Ms. Sukriti Bhatnagar, Advs. for theAppellant.

Ms. Vimla Sinha, Sanjay Mohan, Mukesh Kumar Maroria, Advs.for the Respondents.

The Judgment of the Court was delivered by

DEEPAK GUPTA, J.

1. Leave granted.

2. One of the issues raised in this appeal is whether an appealagainst an order of single judge of High Court deciding case relatedto an Armed Forces personnel pending before the High Court is requiredto be transferred to the Armed Forces Tribunal or should be heard bythe High Court.

3. The Armed Forces Tribunal (AFT for short) was constitutedunder the Armed Forces Tribunal Act, 2007 (hereinafter referred to asthe Act), enacted with the purpose of constituting an AFT to adjudicatedisputes and complaints of personnel belonging to the Armed Forces.Chapter III of the Act, deals with the jurisdiction, power and authority ofthe Tribunal. Section 14(1) of the Act which is relevant reads as follows:-

“14. Jurisdiction, powers and authority in service matters.—(1) Save as otherwise expressly provided in this Act, the Tribunalshall exercise, on and from the appointed day, all the jurisdiction,powers and authority, exercisable immediately before that day byall courts (except the Supreme Court or High Court exercisingjurisdiction under articles 226 and 227 of the Constitution) in relationto all service matters.”

A4. Section 15 provides that the Tribunal shall exercise jurisdiction,power and authority in relation to an appeal against any order, decision,finding or sentence passed by court martial.

5. Section 34 of the Act reads as follows:-

“34. Transfer of pending cases.—(1) Every suit, or otherBproceeding pending before any court including High Court orother authority immediately before the date of establishment ofthe Tribunal under this Act, being suit or proceeding the causeof action whereon it is based, is such that it would have beenwithin the jurisdiction of the Tribunal, if it had arisen after suchCestablishment within the jurisdiction of such Tribunal, standtransferred on that date to such Tribunal.

(2) Where any suit, or other proceeding stands transferredfrom any court including High Court or other authority to theTribunal under sub-section (1),—

(a) the court or other authority shall, as soon as may be, aftersuch transfer, forward the records of such suit, or otherproceeding to the Tribunal;

(b) the Tribunal may, on receipt of such records, proceed todeal with such suit, or other proceeding, so far as may be, inEthe same manner as in the case of an application made undersubsection (2) of section 14, from the stage which was reachedbefore such transfer or from any earlier stage or de novo asthe Tribunal may deem fit.”

6. Division Bench of the Allahabad High Court in Union ofFIndia and others vs. Ram Baran[1]held that the phrase ‘otherproceedings’ in Section 34 of the Act would include all appeals includingLetters Patent Appeals (hereinafter referred to as LPAs). It was heldthat since the Tribunal is substitute of the High Court, the Tribunalcould decide an appeal against the order of single judge which wasrequired to be transferred to the Tribunal.G

7. We may point out that after the enactment of the Uttar PradeshHigh Court (Abolition of Letters Patent Appeals) Act, 1962 LettersPatents are no longer applicable to the High Court of Allahabad.However, Special Appeals are provided against the judgment of single

1 Special Appeal Defective No. 445 of 2005

judge to Division Bench. The High Court held that the term ‘otherproceedings’ include all such intra-court appeals.

8. This view was doubted by another Division Bench of theAllahabad High Court in W Ex Sigman Nand Kishore Sahoo vs. Chiefof Army Staff [2]. Thereafter, the matter was referred to Full Bench inthe said case and the Full Bench by majority held as follows:-

“In view of the foregoing discussions, we are of the consideredopinion that the special appeal filed under Chapter VIII Rule 5 ofthe Allahabad High Court Rules, 1952 against the judgment andorder of the learned Single Judge pending adjudication immediatelyprior to the constitution of the Armed Forces Tribunal is not liableto be transferred to the Tribunal and the decision rendered by thedivision Bench in Ram Baran (Supra) does not lay down the correctlaw.”

9. Ms. Preetika Dwivedi, learned counsel for the appellant submitsthat the view of the Allahabad High Court is incorrect. She contendsthat it has been held by this Court in number of decisions includingUnion of India And Others vs. Major General Shri Kant SharmaAnd Another[3] that the AFT exercises all the powers of the High Court.She submits that it virtually substitutes the High Court in so far as mattersgoverned by the Act are concerned, and as such an LPA or SpecialAppeal against the judgment of single judge is also required to betransferred to the AFT.

10. We are not at all in agreement with this submission. Section14(1) of the Act quoted hereinabove clearly provides that the AFT willexercise powers of all courts except the Supreme Court or High Courtexercising jurisdiction under Article 226 and 227 of the Constitution ofIndia. Section 34 is very carefully worded. It states that ‘every suit’, or‘other proceedings’ pending before any court including High Courtimmediately before the establishment of the Tribunal shall standtransferred on that day to the Tribunal. The Legislature has clearly notvested the AFT with the power and jurisdiction of the High Court to beexercised under Article 226 of the Constitution. We are not going intothe question as to whether the Tribunal is amenable to the supervisoryjurisdiction of High Court under Article 227 of the Constitution but

2 2012 (1) ESC 386 (All); Special Appeal (Defective) No.610 of 2002

3 (2015) 6 SCC 773

Athere can be no manner of doubt that the High Court can exercise itswrit 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 theAFT, the High Court may not exercise their extraordinary writ jurisdictionbecause there is an efficacious alternative remedy available but thatdoes not mean that the jurisdiction of the High Court is taken away. InBa given circumstance, the High Court may and can exercise itsextraordinary writ jurisdiction even against the orders of the High Court.

11. While holding so, we place reliance upon judgment of aConstitution Bench of this Court in L. Chandra Kumar vs. Union ofIndia & Ors.[4]. This court clearly held that judicial review is part ofCthe basic structure of the Constitution and the power of judicial reviewvested in the High Courts and the Supreme Court cannot be taken away.The relevant portion of the judgment reads as follows:-

“78. …An analysis of the manner in which the Framers ofour Constitution incorporated provisions relating to the judiciaryDwould indicate that they were very greatly concerned withsecuring the independence of the judiciary. These attempts weredirected at ensuring that the judiciary would be capable ofeffectively discharging its wide powers of judicial review. Whilethe Constitution confers the power to strike down laws upon theEHigh Courts and the Supreme Court, it also contains elaborateprovisions dealing with the tenure, salaries, allowances, retirementage of Judges as well as the mechanism for selecting Judges tothe superior courts. The inclusion of such elaborate provisionsappears to have been occasioned by the belief that, armed bysuch provisions, the superior courts would be insulated from anyFexecutive or legislative attempts to interfere with the making oftheir decisions. The Judges of the superior courts have beenentrusted with the task of upholding the Constitution and to thisend, have been conferred the power to interpret it. It is they whohave to ensure that the balance of power envisaged by theGConstitution is maintained and that the legislature and the executivedo not, in the discharge of their functions, transgress constitutionallimitations. It is equally their duty to oversee that the judicialdecisions rendered by those who man the subordinate courts andtribunals do not fall foul of strict standards of legal correctness

and judicial independence. The constitutional safeguards whichensure the independence of the Judges of the superior judiciary,are not available to the Judges of the subordinate judiciary or tothose who man tribunals created by ordinary legislations.Consequently, Judges of the latter category can never beconsidered full and effective substitutes for the superior judiciaryin discharging the function of constitutional interpretation. We,therefore, hold that the power of judicial review over legislativeaction vested in the High Courts under Article 226 and in thisCourt under Article 32 of the Constitution is an integral andessential feature of the Constitution, constituting part of its basicstructure. Ordinarily, therefore, the power of High Courts and theSupreme Court to test the constitutional validity of legislationscan never be ousted or excluded.

79. We also hold that the power vested in the High Courts toexercise judicial superintendence over the decisions of all courtsand tribunals within their respective jurisdictions is also part of thebasic structure of the Constitution. This is because situationwhere the High Courts are divested of all other judicial functionsapart from that of constitutional interpretation, is equally to beavoided.”

The aforesaid observations in L. Chandra Kumar (supra) leaveno manner of doubt that the power of judicial review vests with the HighCourt even with regard to orders passed by the AFT and this power ispart of the basic structure of the Constitution.

12. In L. Chandra Kumar (supra) this Court while dealing withthe issue of exclusion of the power of judicial review held that suchpower cannot be excluded by legislation or constitutional amendment.The relevant portion of the judgment reads as follows:-

“90. We may first address the issue of exclusion of the powerof judicial review of the High Courts. We have already held thatin respect of the power of judicial review, the jurisdiction of theHigh Courts under Articles 226/227 cannot wholly be excluded. Ithas been contended before us that the Tribunals should not beallowed to adjudicate upon matters where the vires of legislationsis questioned, and that they should restrict themselves to handlingmatters where constitutional issues are not raised. We cannotbring ourselves to agree to this proposition as that may result in

splitting up proceedings and may cause avoidable delay. If such aview were to be adopted, it would be open for litigants to raiseconstitutional issues, many of which may be quite frivolous, todirectly approach the High Courts and thus subvert the jurisdictionof the Tribunals. Moreover, even in these special branches of law,some areas do involve the consideration of constitutional questionson regular basis; for instance, in service law matters, largemajority of cases involve an interpretation of Articles 14, 15 and16 of the Constitution. To hold that the Tribunals have no powerto handle matters involving constitutional issues would not servethe purpose for which they were constituted. On the other hand,to hold that all such decisions will be subject to the jurisdiction ofthe High Courts under Articles 226/227 of the Constitution beforea Division Bench of the High Court within whose territorialjurisdiction the Tribunal concerned falls will serve two purposes.While saving the power of judicial review of legislative actionvested in the High Courts under Articles 226/227 of the Constitution,it will ensure that frivolous claims are filtered out through theprocess of adjudication in the Tribunal. The High Court will alsohave the benefit of reasoned decision on merits which will be ofuse to it in finally deciding the matter.

91. It has also been contended before us that even in dealingwith cases which are properly before the Tribunals, the manner inwhich justice is dispensed by them leaves much to be desired.Moreover, the remedy provided in the parent statutes, by way ofan appeal by special leave under Article 136 of the Constitution, istoo costly and inaccessible for it to be real and effective.Furthermore, the result of providing such remedy is that thedocket of the Supreme Court is crowded with decisions of Tribunalsthat are challenged on relatively trivial grounds and it is forced toperform the role of first appellate court. We have alreadyemphasised the necessity for ensuring that the High Courts areable to exercise judicial superintendence over the decisions of theTribunals under Article 227 of the Constitution. In R.K. Jain case,after taking note of these facts, it was suggested that the possibilityof an appeal from the Tribunal on questions of law to DivisionBench of High Court within whose territorial jurisdiction theTribunal falls, be pursued. It appears that no follow-up action hasbeen taken pursuant to the suggestion. Such measure would

have improved matters considerably. Having regard to both theaforestated contentions, we hold that all decisions of Tribunals,whether created pursuant to Article 323-A or Article 323-B ofthe Constitution, will be subject to the High Court’s writ jurisdictionunder Articles 226/227 of the Constitution, before Division Benchof the High Court within whose territorial jurisdiction the particularTribunal falls.

xxx xxx xxx

93. Before moving on to other aspects, we may summariseour conclusions on the jurisdictional powers of these Tribunals.The Tribunals are competent to hear matters where the vires ofstatutory provisions are questioned. However, in discharging thisduty, they cannot act as substitutes for the High Courts and theSupreme Court which have, under our constitutional set-up, beenspecifically entrusted with such an obligation. Their function inthis respect is only supplementary and all such decisions of theTribunals will be subject to scrutiny before Division Bench ofthe respective High Courts. The Tribunals will consequently alsohave the power to test the vires of subordinate legislations andrules. However, this power of the Tribunals will be subject to oneimportant exception. The Tribunals shall not entertain any questionregarding the vires of their parent statutes following the settledprinciple that Tribunal which is creature of an Act cannotdeclare that very Act to be unconstitutional. In such cases alone,the High Court concerned may be approached directly. All otherdecisions of these Tribunals, rendered in cases that they arespecifically empowered to adjudicate upon by virtue of their parentstatutes, will also be subject to scrutiny before Division Benchof their respective High Courts. We may add that the Tribunalswill, however, continue to act as the only courts of first instance inrespect of the areas of law for which they have been constituted.By this, we mean that it will not be open for litigants to directlyapproach the High Courts even in cases where they question thevires of statutory legislations (except, as mentioned, where thelegislation which creates the particular Tribunal is challenged) byoverlooking the jurisdiction of the Tribunal concerned.

xxx xxx xxx

A99. In view of the reasoning adopted by us, we hold that clause2(d) of Article 323-A and clause 3(d) of Article 323-B, to theextent they exclude the jurisdiction of the High Courts and theSupreme Court under Articles 226/227 and 32 of the Constitution,are unconstitutional. Section 28 of the Act and the “exclusion ofjurisdiction” clauses in all other legislations enacted under the aegisBof Articles 323-A and 323-B would, to the same extent, beunconstitutional. The jurisdiction conferred upon the High Courtsunder Articles 226/227 and upon the Supreme Court under Article32 of the Constitution is part of the inviolable basic structure ofour Constitution. While this jurisdiction cannot be ousted, otherCcourts and Tribunals may perform supplemental role indischarging the powers conferred by Articles 226/227 and 32 ofthe Constitution. The Tribunals created under Article 323-A andArticle 323-B of the Constitution are possessed of the competenceto test the constitutional validity of statutory provisions and rules.All decisions of these Tribunals will, however, be subject to scrutinyDbefore Division Bench of the High Court within whose jurisdictionthe Tribunal concerned falls. The Tribunals will, nevertheless,continue to act like courts of first instance in respect of the areasof law for which they have been constituted. It will not, therefore,be open for litigants to directly approach the High Courts even inEcases where they question the vires of statutory legislations (exceptwhere the legislation which creates the particular Tribunal ischallenged) by overlooking the jurisdiction of the Tribunalconcerned. Section 5(6) of the Act is valid and constitutional andis to be interpreted in the manner we have indicated.”

F13. Reliance placed by Ms. Dwivedi on the judgment of this Courtin Major General Shri Kant Sharma (supra) is entirely misplaced.The issue before this Court in this case was whether the High Courtwas justified in entertaining writ petitions against the orders of the AFT.This is judgment by two judges and obviously it cannot overrule thejudgment of the Constitution Bench in L. Chandra Kumar (supra).GThe Division Bench, after referring to various judgments including thejudgment in L. Chandra Kumar (supra), summarised its findings inpara 36 as follows:-

“36. The aforesaid decisions rendered by this Court can besummarised as follows:

(i) The power of judicial review vested in the High Court underArticle 226 is one of the basic essential features of the Constitutionand any legislation including the Armed Forces Tribunal Act, 2007cannot override or curtail jurisdiction of the High Court underArticle 226 of the Constitution of India

(ii) The jurisdiction of the High Court under Article 226 andthis Court under Article 32 though cannot be circumscribed bythe provisions of any enactment, they will certainly have dueregard to the legislative intent evidenced by the provisions of theActs and would exercise their jurisdiction consistent with theprovisions of the Act.

(iii) When statutory forum is created by law for redressal ofgrievances, writ petition should not be entertained ignoring thestatutory dispensation.

(iv) The High Court will not entertain petition under Article226 of the Constitution if an effective alternative remedy is availableto the aggrieved person or the statute under which the actioncomplained of has been taken itself contains mechanism forredressal of grievance.”

What this Court held was that though the power of the High Courtunder Article 226 of the Constitution is basic essential feature of theConstitution which cannot be taken away, the High Court should notentertain petition under Article 226 of the Constitution if any othereffective alternative remedy is available to the aggrieved person or thestatute, under which the action complained of has been taken, itselfcontains maxim for redressal of grievance. We have our doubt, withregard to the correctness of the directions (iii) & (iv) of the judgment,since in our opinion it runs counter to the judgment rendered by theConstitution Bench.

14. It would be pertinent to add that the principle that the HighCourt should not exercise its extraordinary writ jurisdiction when anefficacious alternative remedy is available, is rule of prudence and nota rule of law. The writ courts normally refrain from exercising theirextraordinary power if the petitioner has an alternative efficaciousremedy. The existence of such remedy however does not mean that thejurisdiction of the High Court is ousted. At the same time, it is wellsettled principle that such jurisdiction should not be exercised when there

Ais an alternative remedy available[5]. The rule of alternative remedy is arule of discretion and not rule of jurisdiction. Merely because theCourt may not exercise its discretion, is not ground to hold that it hasno jurisdiction. There may be cases where the High Court would bejustified in exercising its writ jurisdiction because of some glaring illegalitycommitted by the AFT. One must also remember that the alternativeBremedy must be efficacious and in case of Non-Commissioned Officer(NCO), or Junior Commissioned Officer (JCO); to expect such personto approach the Supreme Court in every case may not be justified. It isextremely difficult and beyond the monetary reach of an ordinary litigantto approach the Supreme Court. Therefore, it will be for the High CourtCto decide in the peculiar facts and circumstances of each case whetherit should exercise its extraordinary writ jurisdiction or not. There cannotbe blanket ban on the exercise of such jurisdiction because that wouldeffectively mean that the writ court is denuded of its jurisdiction toentertain such writ petitions which is not the law laid down in L. ChandraKumar (supra).D

15. Ms. Dwivedi, placed reliance on the observations made inMajor General Shri Kant Sharma (supra) that, “jurisdiction of theTribunal constituted under the Armed Forces Tribunal Act is in substitutionof the jurisdiction of the civil court and the High Court so far as it relatesto suit relating to condition of service of the persons”, subject to theEprovisions of the Act. It is clear that the intention of the court was not tohold that the tribunal is substitute of the High Court in so far as its writjurisdiction is concerned because that is specifically excluded underSection 14(1) of the Act. We cannot read this one sentence out ofcontext. It is true that proceedings on the original side even in exerciseFof writ jurisdiction are to be transferred to the tribunal for decision bythe AFT because the original jurisdiction now vests with the AFT. Thishowever, does not mean that the AFT can exercise all the powers of theHigh Court.16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors.[6]theGConstitution Bench of this Court, of which one of us (Deepak Gupta, J.was member), clearly held that though these tribunals may be mannedby retired judges of High Courts and Supreme Court, including thoseestablished under Articles 323-A and 323-B of the Constitution, they5 Union of India vs. T.R. Varma AIR 1957 SC 882H6 2019 (15) SCALE 615

cannot seek equivalence with the High Court or the Supreme Court.The following observations are relevant:-

“194. Furthermore, that even though manned by retired judgesof High Courts and the Supreme Court, such Tribunals establishedunder Article 323-A and 323-B of the Constitution cannot seekequivalence with High Court or the Supreme Court. Once judgeof High Court or Supreme Court has retired and he / she nolonger enjoys the Constitutional status, the statutory positionoccupied by him / her cannot be equated with the previous positionas High Court or Supreme Court judge. The rank, dignity andposition of Constitutional judges is hence sui generis and arise notmerely by their position in the Warrant of Precedence or the salaryand perquisites they draw, but as result of the Constitutionaltrust accorded in them. Indiscriminate accordance of status ofsuch Constitutional judges on Tribunal members and presidingofficers will do violence to the very Constitutional Scheme.”

17. The contention of the learned counsel for the appellant, ifaccepted, would strike at the very root of judicial independence andmake the High Court subordinate to the AFT. This can never be theintention of the Legislature. The High Court is Constitutional Courtconstituted under Article 214 of the Constitution and are courts of recordwithin the meaning of Article 215. It is obvious that the order of theHigh Court cannot be challenged before any other forum except theSupreme Court. The provision of intra-court appeal whether by way ofLetters Patents or special enactment is system that provides forcorrection of judgments within the High Courts where judgmentrendered by single judge may be subject to challenge before DivisionBench. This appeal to the Division Bench does not lie in all cases andmust be provided for either under the Letters Patent or any other specialenactment. Even where such appeal lies the appeal is heard by two ormore judges of the High Court. We cannot envisage situation wherean appeal against the order of sitting judge of the High Court is heardby Tribunal comprising of one retired judge and one retired ArmedForces official. Therefore, we reject the contention that an intra courtappeal from the judgment of single judge of the High Court to DivisionBench pending in the High Court is required to be transferred underSection 34 of the Act.

A18. As far as the merits of the case are concerned, the undisputedfact is that the appellant could not clear the aptitude test. It has beenurged that even if he could not clear the aptitude test, he should havebeen considered for appointment in some other post before beingdischarged from service. It is also urged that in the order of discharge itis not indicated that the case of the appellant was considered for suchBalternative service.

19. In our view, it is not necessary to indicate in the order ofdischarge whether such consideration took place or not. From the recordsof the case, we find that before discharge, the name of the appellantwas considered for two categories but unfortunately the appellant couldCnot meet the height criteria for appointment to either of the posts. Thus,this clearly shows that his case was considered as per the extant policybut he was not fit for appointment. In this view of the matter, we find nomerit in the appeal, and hence it is dismissed. Pending application(s) ifany, stand(s) disposed of.

Kalpana K. Tripathy

Appeal dismissed.