# No. 6647364-A Ex-Hav Clerk (Stores) Ram Naresh Ram v. The U.O.I. & Ors

- **Citation:** (2021) 11 ILRA 643
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-01
- **Case number:** Writ A No. 15281 of 2021
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-6647364-a-ex-hav-clerk-stores-ram-naresh-ram-v-the-u-o-i-ors-46599
- **Pages:** 6

## Headnote

A. Service Law - Armed Forces - Promotion -
Armed Forces Tribunal Act, 2007: Section 14.

Armed Forces Tribunal Act, 2007 - Section 30
- Maintainability - Though u/s 30 no person
has a right of appeal against the final order
or decision of the Tribunal to the Supreme
Court other than those falling u/s 30(2) of
the Act, but it is statutory appeal which lies
to the Supreme Court. Thus, against the
impugned order the petitioner has a right of appeal
before the Hon'ble Supreme Court u/s 30 read with
Section 31 of the Act. (Para 9)

The scheme of Section 31 being that an application
for grant of a certificate must first be moved before
the Tribunal, before the aggrieved party can
approach Supreme Court for the grant of leave to
file an appeal. The purpose underlying the
provision appears to be that if the Tribunal itself
grants a certificate of fitness for filing an appeal, it
would be unnecessary for the aggrieved party to
approach Supreme Court for a leave to file such an
appeal. An appeal by certificate would then be
maintainable as a matter of right in view of Section
30 which uses the expression "an appeal shall lie to
the Supreme Court". (Para 2)

The controversy involved before the Tribunal in the
present case was w.r.t. the rejection of statutory
complaint and setting aside the annual confidential
report of the petitioner for the year 1988 and
promotion to him to the rank of Naib Subedar from
ante date of seniority alongwith all consequential
benefits. (Para 10)

Writ petition dismissed leaving it open for the
petitioner to file an appeal before the Hon'ble
Supreme Court in accordance with the provisions of
The Armed Forces Tribunal Act, 2007. (Para 11)
(E-4)

Precedent followed:

## Text

11 All. No. 6647364-A Ex-Hav Clerk (Stores) Ram Naresh Ram Vs. The U.O.I. & Ors.
643
months from the date of production of a certified
copy of this order.

28. Consequently, for the reasons given
above, the writ petition is allowed with no orders
as to cost.
----------
(2021)11ILR A643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 15281 of 2021

No. 6647364-A Ex-Hav Clerk (Stores) Ram
Naresh Ram ...Petitioner
Versus
The U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyajit Mukerji

Counsel for the Respondents:
A.S.G., Sri Sanjay Kumar Om

A. Service Law - Armed Forces - Promotion -
Armed Forces Tribunal Act, 2007: Section 14.

Armed Forces Tribunal Act, 2007 - Section 30
- Maintainability - Though u/s 30 no person
has a right of appeal against the final order
or decision of the Tribunal to the Supreme
Court other than those falling u/s 30(2) of
the Act, but it is statutory appeal which lies
to the Supreme Court. Thus, against the
impugned order the petitioner has a right of appeal
before the Hon'ble Supreme Court u/s 30 read with
Section 31 of the Act. (Para 9)

The scheme of Section 31 being that an application
for grant of a certificate must first be moved before
the Tribunal, before the aggrieved party can
approach Supreme Court for the grant of leave to
file an appeal. The purpose underlying the
provision appears to be that if the Tribunal itself
grants a certificate of fitness for filing an appeal, it
would be unnecessary for the aggrieved party to
approach Supreme Court for a leave to file such an
appeal. An appeal by certificate would then be
maintainable as a matter of right in view of Section
30 which uses the expression "an appeal shall lie to
the Supreme Court". (Para 2)

The controversy involved before the Tribunal in the
present case was w.r.t. the rejection of statutory
complaint and setting aside the annual confidential
report of the petitioner for the year 1988 and
promotion to him to the rank of Naib Subedar from
ante date of seniority alongwith all consequential
benefits. (Para 10)

Writ petition dismissed leaving it open for the
petitioner to file an appeal before the Hon'ble
Supreme Court in accordance with the provisions of
The Armed Forces Tribunal Act, 2007. (Para 11)
(E-4)

Precedent followed:

1. U.O.I. & ors. Vs Major General Shri Kant Sharma
& anr., (2015) 6 SCC 773 (Para 2)

Precedent distinguished:

1. Balkrishna Ram Vs U.O.I. & anr., (2020) 2 SCC 442
(Para 3)

Present petition assails order 05.02.2018,
passed by the Armed Forces Tribunal, Regional
Bench, Lucknow.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Vikas Budhwar, J.)

1. Heard Sri Satyajit Mukerji, learned
counsel for the petitioner and Sri Sanjay Kumar
Om, learned Central Government standing
counsel.

2. Against the impugned order dated
05.02.2018 in O.A. No.160 of 2016, passed by
the Armed Forces Tribunal, Regional Bench,
Lucknow, under Section 14 of the Armed Forces
644 INDIAN LAW REPORTS ALLAHABAD SERIES
Tribunal Act 2007, the petitioner has a right of
Appeal under Section 30 of the Act before the
Supreme Court. In the case of Union of India &
Ors. Vs. Major General Shri Kant Sharma &
Anr. (2015) 6 SCC 773, Hon'ble Supreme Court
held as under :

"33. Statutory Remedy

In Union of India vs. Brigadier P.S.
Gill, (2012) 4 SCC 463, this Court while dealing
with appeals under Section 30 of the Armed
Forces Tribunal Act following the procedure
prescribed
under
Section
31
and
its
maintainability, held as follows:

"8. Section 31 of the Act extracted
above specifically provides for an appeal to the
Supreme Court but stipulates two distinct routes
for such an appeal. The first route to this Court
is sanctioned by the Tribunal granting leave to
file such an appeal. Section 31(1) in no
uncertain terms forbids grant of leave to appeal
to this Court unless the Tribunal certifies that a
point of law of general public importance is
involved in the decision. This implies that
Section 31 does not create a vested, indefeasible
or absolute right of filing an appeal to this
Court against a final order or decision of the
Tribunal to this Court. Such an appeal must be
preceded by the leave of the Tribunal and such
leave must in turn be preceded by a certificate
by the Tribunal that a point of law of general
public importance is involved in the appeal.

9. The second and the only other route
to access this Court is also found in Section
31(1) itself. The expression "or it appears to the
Supreme Court [pic]that the point is one which
ought to be considered by that Court" empowers
this Court to permit the filing of an appeal
against any such final decision or order of the
Tribunal.

10. A conjoint reading of Sections 30
and 31 can lead to only one conclusion viz. there
is no vested right of appeal against a final order
or decision of the Tribunal to this Court other
than those falling under Section 30(2) of the Act.
The only mode to bring up the matter to this
Court in appeal is either by way of certificate
obtained from the Tribunal that decided the
matter or by obtaining leave of this Court under
Section 31 for filing an appeal depending upon
whether this Court considers the point involved
in the case to be one that ought to be considered
by this Court.

11. An incidental question that arises
is : whether an application for permission to file
an appeal under Section 31 can be moved
directly before the Supreme Court without first
approaching the Tribunal for a certificate in
terms of the first part of Section 31(1) of the
Act?

12. In the ordinary course the
aggrieved party could perhaps adopt one of the
two routes to bring up the matter to this Court
but that does not appear to be the legislative
intent evident from Section 31(2) (supra). A
careful reading of the section shows that it not
only stipulates the period for making an
application to the Tribunal for grant of leave to
appeal to this Court but also stipulates the
period for making an application to this Court
for leave of this Court to file an appeal against
the said order which is sought to be challenged.

13. It is significant that the period
stipulated for filing an application to this Court
starts running from the date beginning from the
date the application made to the Tribunal for
grant of certificate is refused by the Tribunal.
This implies that the aggrieved party cannot
approach this Court directly for grant of leave
to file an appeal under Section 31(1) read with
Section 31(2) of the Act.

14. The scheme of Section 31 being
that an application for grant of a certificate
must first be moved before the Tribunal, before
the aggrieved party can approach this Court for
the grant of leave to file an appeal. The purpose
underlying the provision appears to be that if the
Tribunal itself grants a certificate of fitness for
filing an appeal, it would be unnecessary for the
aggrieved party to approach this Court for a
11 All. No. 6647364-A Ex-Hav Clerk (Stores) Ram Naresh Ram Vs. The U.O.I. & Ors.
645
leave to file such an appeal. An appeal by
certificate would then be maintainable as a
matter of right in view of Section 30 which uses
the expression "an appeal shall lie to the
Supreme Court". That appears to us to be the
true legal position on a plain reading of the
provisions of Sections 30 and 31."

Thus, we find that though under
Section 30 no person has a right of appeal
against the final order or decision of the
Tribunal to this Court other than those falling
under Section 30(2) of the Act, but it is statutory
appeal which lies to this Court.

34. The aforesaid decisions rendered
by this Court can be summarised as follows:

(i) The power of judicial review
vested in the High Court under Article 226 is
one of the basic essential features of the
Constitution and any legislation including
Armed Forces Act, 2007 cannot override or
curtail jurisdiction of the High Court under
Article 226 of the Constitution of India.(Refer:
L. Chandra and S.N. Mukherjee).

(ii) The jurisdiction of the High
Court under Article 226 and this Court under
Article 32 though cannot be circumscribed by
the provisions of any enactment, they will
certainly have due regard to the legislative
intent evidenced by the provisions of the Acts
and
would
exercise
their
jurisdiction
consistent
with
the
provisions
of
the
Act.(Refer: Mafatlal Industries Ltd.).

(iii)When
a
statutory
forum
is
created by law for redressal of grievances, a
writ petition should not be entertained
ignoring the statutory dispensation. (Refer:
Nivedita Sharma).

(iv)
The
High
Court
will
not
entertain a petition under Article 226 of the
Constitution if an effective alternative remedy
is available to the aggrieved person or the
statute under which the action complained of
has been taken itself contains a mechanism for
redressal of grievance. (Refer: Nivedita
Sharma).

35. Article 141 of the Constitution of
India reads as follows: "Article 141. Law
declared by Supreme Court to be binding on all
courts.- The law declared by the Supreme Court
shall be binding on all courts within the territory
of India."

36. In Executive Engineer, Southern
Electricity Supply Company of Orissa Limited
(SOUTHCO) this Court observed that it should
only be for the specialised tribunal or the
appellate authorities to examine the merits of
assessment or even the factual matrix of the
case.

In Chhabil Dass Agrawal this Court
held that when a statutory forum is created by
law for redressal of grievances, a writ petition
should not be entertained ignoring the statutory
dispensation.

In Cicily Kallarackal this Court issued
a direction of caution that it will not be a proper
exercise of the jurisdiction by the High Court to
entertain a writ petition against such orders
against which statutory appeal lies before this
Court.

In view of Article 141(1) the law as
laid down by this Court, as referred above, is
binding on all courts of India including the High
Courts.

37. Likelihood of anomalous situation

If the High Court entertains a petition
under Article 226 of the Constitution of India
against order passed by Armed Forces Tribunal
under Section 14 or Section 15 of the Act
bypassing the machinery of statute i.e. Sections
30 and 31 of the Act, there is likelihood of
anomalous situation for the aggrieved person in
praying for relief from this Court.

Section 30 provides for an appeal to
this Court subject to leave granted under Section
31 of the Act. By clause (2) of Article 136 of the
Constitution of India, the appellate jurisdiction
of this Court under Article 136 has been
excluded
in
relation
to
any
judgment,
determination, sentence or order passed or
made by any court or Tribunal constituted by or
646 INDIAN LAW REPORTS ALLAHABAD SERIES
under any law relating to the Armed Forces. If
any person aggrieved by the order of the
Tribunal, moves before the High Court under
Article 226 and the High Court entertains the
petition and passes a judgment or order, the
person who may be aggrieved against both the
orders passed by the Armed Forces Tribunal
and the High Court, cannot challenge both the
orders in one joint appeal. The aggrieved person
may file leave to appeal under Article 136 of the
Constitution against the judgment passed by the
High Court but in view of the bar of jurisdiction
by clause (2) of Article 136, this Court cannot
entertain appeal against the order of the Armed
Forces Tribunal. Once, the High Court
entertains a petition under Article 226 of the
Constitution against the order of Armed Forces
Tribunal and decides the matter, the person who
thus approached the High Court, will also be
precluded from filing an appeal under Section
30 with leave to appeal under Section 31 of the
Act against the order of the Armed Forces
Tribunal as he cannot challenge the order
passed by the High Court under Article 226 of
the Constitution under Section 30 read with
Section 31 of the Act. Thereby, there is a chance
of anomalous situation. Therefore, it is always
desirable for the High Court to act in terms of
the law laid down by this Court as referred to
above, which is binding on the High Court
under Article 141 of the Constitution of India,
allowing the aggrieved person to avail the
remedy under Section 30 read with Section 31
Armed Forces Act."

38. 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.

39. For the reasons aforesaid, we set
aside the impugned judgments passed by the
Delhi High Court and upheld the judgments and
orders passed by the Andhra Pradesh High
Court and Allahabad High Court. Aggrieved
persons are given liberty to avail the remedy
under Section 30 with leave to appeal under
Section 31 of the Act, and if so necessary may
file petition for condonation of delay to avail
remedy before this Court.

3. Learned counsel for the petitioner has
relied upon a recent judgment of Hon'ble
Supreme Court in the case of Balkrishna Ram
Vs. Union of India and Anr. (2020) 2 SCC
442.

4. We have perused the judgment of
Hon'ble Supreme Court in the case of
Balkrishna Ram (supra) and we find that in
paragraphs 2, 14 and 19, Hon'ble Supreme Court
has observed as under :-

"2. One of the issues raised in this
appeal is whether an appeal against an order of
a single judge of a High Court deciding a case
related to an Armed Forces personnel pending
before the High Court is required to be
transferred to the Armed Forces Tribunal or
should be heard by the High Court.

14. It would be pertinent to add that
the principle that the High Court should not
exercise its extraordinary writ jurisdiction when
an efficacious alternative remedy is available, is
a rule of prudence and not a rule of law. The
writ courts normally refrain from exercising
their extraordinary power if the petitioner has
an alternative efficacious remedy. The existence
of such remedy however does not mean that the
jurisdiction of the High Court is ousted. At the
same time, it is a well settled principle that such
jurisdiction should not be exercised when there
11 All. No. 6647364-A Ex-Hav Clerk (Stores) Ram Naresh Ram Vs. The U.O.I. & Ors.
647
is an alternative remedy available Union of
India vs. T.R. Varma AIR 1957 SC 882. The
rule of alternative remedy is a rule of discretion
and not a rule of jurisdiction. Merely because
the Court may not exercise its discretion, is not
a ground to hold that it has no jurisdiction.
There may be cases where the High Court would
be justified in exercising its writ jurisdiction
because of some glaring illegality committed by
the AFT. One must also remember that the
alternative remedy must be efficacious and in
case of a Non Commissioned Officer (NCO), or
a Junior Commissioned Officer (JCO); to expect
such a person to approach the Supreme Court in
every case may not be justified. It is extremely
difficult and beyond the monetary reach of an
ordinary litigant to approach the Supreme
Court. Therefore, it will be for the High Court to
decide in the peculiar facts and circumstances of
each case whether it should exercise its
extraordinary writ jurisdiction or not. There
cannot be a blanket ban on the exercise of such
jurisdiction because that would effectively mean
that the writ court is denuded of its jurisdiction
to entertain such writ petitions which is not the
law laid down in L. Chandra Kumar (supra).

19. In our view, it is not necessary to
indicate in the order of discharge whether such
consideration took place or not. From the
records of the case, we find that before
discharge, the name of the appellant was
considered for two categories but unfortunately
the appellant could not meet the height criteria
for appointment to either of the posts. Thus, this
clearly shows that his case was considered as
per the extant policy but he was not fit for
appointment. In this view of the matter, we find
no merit in the appeal, and hence it is dismissed.
Pending application(s) if any, stand(s) disposed
of."

5. The judgment in the case of Balkrishna
Ram (supra) and judgment in the case of
Major General Shri Kant Sharma (supra)
both were rendered by Division Benches of
Hon'ble Supreme Court. In the case of Major
General Shri Kant Sharma (supra) the
question consdiered by Hon'ble Supreme Court
was as under :

"Whether the right of appeal under
Section 30 of the Armed Forces Tribunal Act,
2007 against an order of Armed Forces
Tribunal with the leave of the Tribunal under
Section 31 of the Act or leave granted by the
Supreme Court, or bar of leave to appeal before
the Supreme Court under Article 136(2) of the
Constitution of India, will bar the jurisdiction of
the High Court under Article 226 of the
Constitution of India regarding matters related
to Armed Forces. ?"

6. The aforesaid question was specifically
answered by Hon'ble Supreme Court in the
aforequoted paragraphs 37, 38, 39 of the
judgment.

7. The controversy involved before the
Hon'ble Supreme Court in the case of
Balkrishna Ram (supra) is reflected from the
paragraph 2 of the aforequoted paragraph of the
judgment which indicates that the question
involved was "whether an appeal against an
order of a single judge of a High Court deciding
a case related to an Armed Forces personnel
pending before the High Court is required to be
transferred to the Armed Forces Tribunal or
should be heard by the High Court. ?"

8. The question so framed was answered
by Hon'ble Supreme Court with the observations
made in paragraph 14 as aforequoted and
ultimately the appeal was dismissed with the
observations made in paragraph 19 of the
judgment.

9. The question with respect to the
interpretation of Section 30 of the Armed Forces
Tribunal Act, 2007 was directly and essentially
in issue and consideration by Hon'ble Supreme
648 INDIAN LAW REPORTS ALLAHABAD SERIES
Court Union of India & Ors. Vs. Major
General Shri Kant Sharma & Anr (supra)
and it was held that no person has a right of
appeal against the final order or decision of the
Tribunal to the Supreme Court other than those
falling under Section 30(2) of the Act, but it is
statutory appeal which lies to the Supreme
Court. Thus, against the impugned order the
petitioner has a right of appeal before the
Hon'ble Supreme Court under under Section 30
read with Section 31 of the Act. The judgment
of Hon'ble Supreme Court in the case of
Balkrishna Ram (supra) reiterates the well
settled principle of law with regard to the
extraordinary and discretionary jurisdiction of
High Court under Article 226 of the Constitution
of India.

10. The controversy involved before the
Tribunal in the present set of facts was with
regard to the rejection of statutory complaint and
setting aside the annual confidential report of the
petitioner for the year 1988 and promotion to
him to the rank of Naib Subedar from ante date
of seniority alongwith all consequential benefits.

11.

Considering
the
facts
and
circumstances of the case and the impugned
order of Tribunal, we do not find any good
reason to exercise our discretion to entertain the
present writ petition particularly in view of the
law laid down by Hon'ble Supreme Court in the
case of Union of India & Ors. Vs. Major
General Shri Kant Sharma & Anr (supra).
Consequently and without expressing any
opinion on merits of the claim of the petitioner,
the writ petition is dismissed leaving it open for
the petitioner to file an appeal before the Hon'ble
Supreme
Court
in
accordance
with
the
provisions of The Armed Forces Tribunal Act,
2007.
----------
(2021)11ILR A648
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2021

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 13256 of 2021
connected with
Writ C Nos. 14759 of 2019 and 17749 of 2019 and
17779 of 2019

Vijay Bahadur & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
C.S.C.

A. Service Law - Employment - Salary/wages -
Eviction - Societies Registration Act,1860 -
Section 13 - The Society which managed the affairs
of the hospital (The Georgina McRobert Memorial
Hospital, Kanpur Nagar) dissolved and as a result the
lease granted in favour of the Society was cancelled.
In pursuance to this, petitioners (employees of the
hospital) of Writ - A No. 13256 of 2021 were directed
to vacate the premises by the impugned order.

Societies Registration Act, 1860 - Section 13 -
No approval is required from the Sub-Registrar
and any dispute among the governing body
members or the members of the Society is to
be referred to the Principal Court of original
Civil jurisdiction of the District, in which the
chief building of the Society is situated and
that Court alone shall pass such order in the
matter as it may deem fit. (Para 18)

As of today legally there is no Society in existence
from the date of passing of the resolution dissolving
the Society and there being no challenge before the
Principal Court of original civil jurisdiction, Court held
that the Writ-C No. 14759 of 2021 could not have
been filed by the petitioners, who have no locus,
specially petitioner no. 1 (which stands dissolved),
Petitioner No 2, Petitioner No 5 and Petitioner No 6
(who are neither the members nor members of Board
of Governors) and with regard to the other persons
i.e. Petitioners nos. 3 and 4 the only recourse open