# Ram Harsh v. The U.O.I. & Ors

- **Citation:** (2022) 2 ILRA 423
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-20
- **Case number:** Writ-A No. 17043 of 2021
- **Bench:** Anjani Kumar Mishra, Vikram D Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-harsh-v-the-u-o-i-ors-48125
- **Pages:** 11

## Headnote

A. Civil Law - Constitution of India-1950Article 226 - Armed Force Tribunal Act,
2007-Section 30 & 31- challenge to-delayed
payment
of
pension
-Petitioner
was
discharged from his service being deserter- -
Tribunal dismissed the original applicationpetitioner by-passed statutory alternative
remedy provided under the Act, 2007petitioner invoked extraordinary jurisdiction
Under Article 226 of the Constitution of
India for entertaining the writ petition on
the ground of old age related ailments and
complications-he
did
not
file
medical
certificate nor any document brought on
record in support of his pleadings that he is
not physically fit to approach the Supreme
Court-Even he took plea that he is alone his
sons are living separately but failed to
provide any evidence that his sons are not
supporting him to approach the Apex CourtOn the basis of vague and bald statement,
the petitioner cannot be permitted to bypass
the alternative remedy of appeal.( 1 to 32)

B. The pleadings are the foundation of
litigation. In pleadings the necessary and
relevant particulars and material must be
included. In case where the petitioner is
praying for intervention in exercise of
powers under Article 226 of the Constitution
bypassing the statutory remedy, it is the
duty of the petitioner to bring complete
facts
and
circumstances
by
way
of
pleadings. if the factual foundation for the
cause of action in approaching the court is
missing or is vague, then it is always open
for the court to deny the relief to the
petitioner in the facts and circumstances of
the particular case. The writ courts normally
refrain from exercising their extraordinary
power if the petitioner has an alternative
efficacious remedy. the rule of alternative
remedy is a rule of discretion and not a rule
of jurisdiction. The existence of such remedy
does not mean that the jurisdiction of the
High Court is ousted. (Para 19 to 27)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

2 All. Ram Harsh Vs. The U.O.I. & Ors.
423
cannot be exercised in the case of a person
who got the appointment on the basis of
false castecertificate by playing a fraud. No
sympathy and equitable consideration can
come to his rescue. We are of the view that
equity or compassion cannot be allowed to
bend the arms of law in a case where an
individual acquired a status by practising
fraud." (Id. at p. 116)"

32. Considering the arguments raised
by counsel for the petitioners as well as the
nature of allegation against the petitioner
and also that, this Court is of the considered
view that there is no infirmity in the
impugned order directing regular enquiry
against the petitioner and no ground is
made out requiring interference by this
Court at this stage and hence the petitioners
being devoid of merit is dismissed.
----------
(2022)02ILR A423
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Writ-A No. 17043 of 2021

Ram Harsh ...Petitioner
Versus
The U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Aftab Alam

Counsel for the Respondents:
A.S.G.I., Sri Naresh Chandra Tripathi

A. Civil Law - Constitution of India-1950Article 226 - Armed Force Tribunal Act,
2007-Section 30 & 31- challenge to-delayed
payment
of
pension
-Petitioner
was
discharged from his service being deserter- -
Tribunal dismissed the original applicationpetitioner by-passed statutory alternative
remedy provided under the Act, 2007petitioner invoked extraordinary jurisdiction
Under Article 226 of the Constitution of
India for entertaining the writ petition on
the ground of old age related ailments and
complications-he
did
not
file
medical
certificate nor any document brought on
record in support of his pleadings that he is
not physically fit to approach the Supreme
Court-Even he took plea that he is alone his
sons are living separately but failed to
provide any evidence that his sons are not
supporting him to approach the Apex CourtOn the basis of vague and bald statement,
the petitioner cannot be permitted to bypass
the alternative remedy of appeal.( 1 to 32)

B. The pleadings are the foundation of
litigation. In pleadings the necessary and
relevant particulars and material must be
included. In case where the petitioner is
praying for intervention in exercise of
powers under Article 226 of the Constitution
bypassing the statutory remedy, it is the
duty of the petitioner to bring complete
facts
and
circumstances
by
way
of
pleadings. if the factual foundation for the
cause of action in approaching the court is
missing or is vague, then it is always open
for the court to deny the relief to the
petitioner in the facts and circumstances of
the particular case. The writ courts normally
refrain from exercising their extraordinary
power if the petitioner has an alternative
efficacious remedy. the rule of alternative
remedy is a rule of discretion and not a rule
of jurisdiction. The existence of such remedy
does not mean that the jurisdiction of the
High Court is ousted. (Para 19 to 27)

The writ petition is dismissed. (E-6)

List of Cases cited:

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

2. Ram Naresh Ram Vs U.O.I. & ors., Writ -A No.
15281 of 2021

3. Mahesh Chand Ex-LNK/CI Vs U.O.I. (2014) 3
ESC 1614
424 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Balkrishna Ram Vs U.O.I. & anr. (2020) 2 SCC
442
(Delivered by Hon'ble Vikram D Chauhan, J.)

1. The present writ petition is filed by
the petitioner challenging the order dated
27th August, 2021 passed by the Armed
Forces Tribunal (RB), Lucknow in Original
Application No.475 of 2017. It is further
prayed in the present writ petition to issue
direction
commanding
the
respondent
authorities to pay interest at the rate of 18
% per annum on the arrears of pension and
other retiral dues w.e.f. 7th August, 1991 to
the date of actual payment of the aforesaid
arrears of pension and other retiral dues.

2. The brief facts of the case arising in
the present writ petition are that the
petitioner was enrolled in the Army
Medical Corps of Indian Army on 6th
August, 1971 and was discharged from
service on 20th April, 1997, being deserter.
Being aggrieved, petitioner preferred Civil
Misc. Writ Petition No.16478 of 2001
before this Court. Upon creation of the
Armed Forces Tribunal, the same was
transferred and renumbered as Transfer
Application
No.1469
of
2010.
The
aforesaid Transfer Application was allowed
by the order dated 21st April, 2016 to the
extent that the respondents were directed to
pay pension and all other retiral benefits to
the petitioner, considering him to be in
service upto 6th August, 1991 within a
period
of
three
months.
When
the
respondents did not comply with the
aforesaid order, the petitioner preferred
Execution Application No.173 of 2016. In
execution proceedings on 29th May, 2017,
the authorities concerned handed over the
Pension
Payment
Order
bearing
No.5001122017 dated 28th June, 2017 and
the petitioner was paid pension w.e.f. 28th
June, 2017. Thereafter, the respondent
authorities have paid all the retiral dues of
the petitioner w.e.f. 7th August, 1991 in
terms of PPO dated 26th May, 2017.

3. The petitioner thereafter, preferred
Original Application No.475 of 2017
before
the
Armed
Forces
Tribunal,
Regional
Bench,
Lucknow
with
the
following prayers:-

"i. This Hon'ble Tribunal may kindly
be pleased to issue a writ, order, rule or
direction
directing
the
respondents
authorities specially the respondent no.4 to
pay interest @ 18% per annum on account
of delayed payment of pension other retiral
dues such as Gratuity, G.P.F., Group
Insurance, Commutation of pension, Leave
encashment and arrears of pension etc.
w.e.f. 08.11.1991 to the date of actual
payment of the aforesaid retiral dues.

ii. This Hon'ble Tribunal may further
be pleased to pass such other and/or
further orders as deem fit, proper and
necessary in the circumstances of this case.

iii. Award cost to the applicant."

4. The above mentioned original
application
was
contested
by
the
respondents before the Tribunal below and
the Tribunal below by impugned judgment
dated 27th August, 2021 has dismissed the
above mentioned original application of the
petitioner.

5. It is the impugned order dated 27th
August, 2021 passed by the Armed Forces
Tribunal, Regional Bench, Lucknow, that is
subject matter of challenge in the present
writ petition.

6. Sri Naresh Chandra Tripathi,
learned counsel appearing on behalf of
respondents has raised a preliminary
objection with regard to the maintainability
2 All. Ram Harsh Vs. The U.O.I. & Ors.
425
of the writ petition under Article 226 of the
Constitution of India on the ground that the
petitioner has a statutory alternative remedy
of filing an appeal under Sections 30 and
31 of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as the "Act No.55 of
2007") and in view of the aforesaid, the
present writ petition is liable to be
dismissed on the ground of alternative
remedy. In this reference, Shri N.C.Tripathi
has relied upon the judgment of the Apex
Court in Union of India Vs Major General
Shri Kant Sharma and others, reported in
2015 (6) SCC 773 and judgment dated 1st
November, 2021 passed by this Court in
Writ-A No 15281 of 2021 - Ex-Hav Clerk
(Stores) Ram Naresh Ram Vs Union of
India and others to contend that the
present writ petition is not liable to be
entertained on the ground of alternative
remedy of filing an appeal being available
to petitioner.

7. Confronted with the aforesaid
preliminary objection raised on behalf of
the respondents, the counsel for the
petitioner has submitted that although there
is an alternative remedy under Sections 30
and 31 of the Act of 2007, by way of
preferring an appeal before the Hon'ble
Supreme Court, however, on account of the
pitiable condition of the petitioner, the
aforesaid remedy would not be efficacious
in the facts and circumstances of the case
and as such, the writ petition is liable to be
entertained. Counsel for the petitioner has
placed reliance on the Full Bench judgment
of this Court in Mahesh Chand ExLNK/CI Vs Union of India, 2014 (3) ESC
1614 to contend that the powers of judicial
review by the High Court under Article 226
of the Constitution of India cannot be
abrogated by Armed Forces Tribunal Act.
The counsel for the petitioner has further
relied upon the judgement of the Apex
Court in Balkrishna Ram Vs Union of
India and another, 2020 (2) SCC 442 in
support of his submissions.

8. The Act No. 55 of 2007 has been
enacted to provide for the adjudication or
trial by the 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 and
also to provide for appeals arising out of
orders, findings or sentences of court
martial held under the said Acts and for
matters connected therewith or incidental
thereto.

9. The aforesaid Act No. 55 of 2007
under Section 4 provides for establishment
of Armed Forces Tribunal to exercise the
jurisdiction, powers and authority conferred
on it by or under this Act. The jurisdiction
of the Tribunal has been provided under
Section 14 of the Act No. 55 of 2007.
Section 14 provides that a person aggrieved
by an order pertaining to any service matter
may make an application to the Tribunal in
relation to all service matters. Under
Section 14(4) of the Act, the Tribunal is
vested with the same powers as vested with
the civil court while trying a suit in respect
of matters enumerated under Section 14(4).
It is further to be seen that the Tribunal is
the authority under the aforesaid Act to
decide both the questions of law and facts
as may be raised before it.

10. The provisions of appeal under
Sections 30 and 31 of the Act no 55 of
2007 is provided against an order passed by
the Armed Forces Tribunal to the Supreme
Court. It is not in dispute between the
parties that the remedy of appeal is
provided under the Act against the
426 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order dated 27th August, 2021
passed by the Armed Forces Tribunal,
Regional
Bench,
Lucknow.
Further,
Section 33 of the Armed Forces Tribunal
Act
provides
for
exclusion
of
the
jurisdiction of the civil court.

11. It is trite of law that the power of
judicial review vested in the High Court
under Article 226 and 227 of the
Constitution
to
exercise
judicial
superintendents over the decision of all
Courts and Tribunals within the respective
jurisdiction is also part of the basic
structure of the Constitution. Broadly
speaking,
judicial
review
in
India
comprises three aspects: judicial review of
legislative
action,
judicial
review
of
judicial decisions and judicial review of
administrative action. The present case
pertains to judicial review of judicial
decisions.

12. The jurisdiction under Article
226 of the Constitution of India is
extraordinary and discretionary in nature.
It is also to be noted that the powers to be
exercised by the High Court under
Articles 226 and 227 are constitutional
powers and the same cannot be excluded
by
legislation.
The
Armed
Forces
Tribunal Act cannot curtail the powers
under
the
grand-norm
being
the
constitution. The legislations under the
constitutional framework is required to be
in consonance with the scheme of the
Constitution specially the scheme of
judicial
review
provided
in
the
Constitution under Articles 226 and 32 of
the Constitution.

13. The Full Bench of this Court in
Mahesh Chand Ex-LNK/CI Vs Union of
India (supra) in paragraph 71 has held as
follows:-

(i) Our jurisprudence in over six
decades
since
the
adoption
of
the
Constitution has evolved a clear, categoric
and unambiguous recognition of the
importance of judicial review by the
Supreme Court under Article 32 and by the
High Courts under Article 226. Judicial
review is an indispensable safeguard to the
preservation of liberty, freedom and to the
realization of rights founded on the rule of
law. Without constitutionally entrenched
remedies, the realisation of fundamental
constitutional rights would be illusory or,
as Dr B R Ambedkar described it, a mere
'pious declaration': "It is the remedy that
makes a right real. If there is no remedy,
there is no right of all, and I am therefore
not prepared to burden the Constitution
with a number of pious declarations which
may sound as glittering generalities but for
which the Constitution makes no provision
by way of a remedy. It is much better to be
limited in the scope of our rights and to
make them real by enunciating remedies
than to have a lot of pious wishes embodied
in the Constitution. I am very glad that this
House has seen that the remedies that we
have provided constitute a fundamental
part of this Constitution..."50

(ii) The power of judicial review of the
Supreme Court and of the High Courts is
firmly entrenched as a basic feature of the
Constitution
which
lies
beyond
the
amending power. Even more so, ordinary
legislation
cannot
abrogate
the
constitutional power of judicial review that
is vested in the Supreme Court under
Article 32 and in the High Courts under
Article 226;

(iii) The Armed Forces Tribunal Act,
2007 does not contain, either expressly or
by necessary implication, any exclusion of
the power of judicial review that is
conferred upon the Supreme Court under
Article 32 or upon the High Courts under
2 All. Ram Harsh Vs. The U.O.I. & Ors.
427
Article 226. The legislation in fact contains
a statutory recognition in Section 14 that
the jurisdiction which is conferred upon the
Armed Forces Tribunal is a jurisdiction in
relation to service matters as defined in
Section 3(o) as was exercisable by all
courts and tribunals immediately before the
appointed day, save and except the
jurisdiction exercisable by the Supreme
Court and the High Courts;

(iv) Having said this, it needs to be
emphasised
that
the
existence
of
jurisdiction and the nature of its exercise
have distinct connotations in constitutional
law. The Armed Forces Tribunal is
constituted by legislation which provides
for
a
specialized
and
efficacious
administration of justice in matters falling
within its jurisdiction under the provisions
of the Act. This is coupled with the need to
maintain discipline in the Armed Forces;

(v) The Armed Forces Tribunal is a
court of first instance and ordinarily, matters
which fall within the purview of its
jurisdiction have to proceed for adjudication
before the Tribunal and the Tribunal alone.
Against the decision of the Tribunal, there is
a statutory remedy of an appeal which is
provided under Sections 30 and 31 to the
Supreme Court;

(vi) Since a statutory remedy of an
appeal is provided, the principles which are
well established for the exercise of the
jurisdiction under Article 226, would warrant
that the High Court should be circumspect
and careful while determining as to whether
any case for the exercise of jurisdiction under
Article 226 of the Constitution is made out;

(vii) The jurisdiction under Article 226
has not been abrogated as it could not have
been, being a basic and essential feature of
the Constitution."

14. The Apex Court in Union of
India v. Major General Shri Kant Sharma
and another, (2015) 6 SCC 773 has held as
under:-

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

(i) The power of judicial review vested
in the High Court under Article 226 is one
of the basic essential features of the
Constitution and any legislation including
the Armed Forces Tribunal Act, 2007
cannot override or curtail jurisdiction of
the High Court under Article 226 of the
Constitution of India.(Refer: L. Chandra
Kumar [L. Chandra Kumar v. Union of
India, (1997) 3 SCC 261 : 1997 SCC (L&S)
577] and S.N. Mukherjee [(1990) 4 SCC
594 : 1990 SCC (Cri) 669] .)

(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. [(1997) 5 SCC 536] )

(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 [(2011) 14 SCC 337 : (2012) 4
SCC (Civ) 947] .)

(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 [(2011)
14 SCC 337 : (2012) 4 SCC (Civ) 947].)"

15. The Apex Court in Union of
India v. Major General Shri Kant Sharma
428 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra) has highlighted the anomalous
situation that will be created in case the
statutory alternative remedy is permitted to
be bypassed. In this reference, attention is
drawn to paragraph 43 and 44 of Union of
India v. Major General Shri Kant Sharma
(supra):-

"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 under any law
relating to the Armed Forces. If any person
aggrieved by the order of the Tribunal,
moves 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 the 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 of
the Armed Forces Tribunal Act.

The High Court (the Delhi High
Court) while entertaining the writ petition
under Article 226 of the Constitution
bypassed the machinery created under
Sections 30 and 31 of the Act. However, we
find that the 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 the
Delhi High Court was not justified in
entertaining the petition under Article 226
of the Constitution of India."

16. The Apex Court in Balkrishna
Ram Vs Union of India (supra) has held as
under:-

"1. Leave granted. 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
2 All. Ram Harsh Vs. The U.O.I. & Ors.
429
normally refrain from exercising their
extraordinary power if the petitioner has
an alternative efficacious remedy. The
existence of such remedy however does not
mean that the jurisdiction of the High
Court is ousted. At the same time, it is a
well settled principle that such jurisdiction
should not be exercised when there is an
alternative remedy available [Union of
India v. 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 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)."

17. It is further to be seen that the
controversy involved before the Apex
Court in the matter of Balkrishna Ram Vs
Union of India and another (supra) was
whether an appeal against an order of
Single Judge of 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.

18. A Division Bench of this Court in
Writ- A No 15281 of 2021 by order dated
1st November, 2021 has considered a
similar issue and held as under:-

"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
430 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

19. The power of the High Court
under Article 226 of the Constitution for
judicial review of the order of the tribunal
below is not curtailed or restricted in any
manner. The remedy provided under
Article 226 of the Constitution is a
extraordinary and discretionary remedy.

20. It would be pertinent to add that
the principle that the High Court should not
exercise its extraordinary writ jurisdiction
when an efficacious alternative remedy is
available, is a rule of prudence and not a
rule of law. The writ courts normally
refrain from exercising their extraordinary
power if the petitioner has an alternative
efficacious remedy. The existence of such
remedy however does not mean that the
jurisdiction of the High Court is ousted. At
the same time, it is a well settled principle
that such jurisdiction should not be
exercised when there is an alternative
remedy available. 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.

21. It is further to be seen that from
the decisions stated herein above, it is clear
that the judicial review is part of the basic
structure of the Constitution and the High
Court under Article 226 of the Constitution
is not denuded of its power of judicial
review in view of Armed Forces Tribunal
Act. The power of the High Court under
Article
226
is
discretionary
and
extraordinary and is to exercise with great
caution. The exercise of the powers of
judicial review by the High Court under
Article 226 of the Constitution will depend
on the facts and circumstances of each
case. The discretion under Article 226 of
the Constitution is to be exercised by
objective assessment of the plea of the
petitioner that the statutory forum provided
under the Armed Forces Tribunal Act is not
efficacious remedy in the facts and
circumstances of the case.

22. It is further to be seen that the
case of the petitioner is that although there
is an alternate remedy to approach the
Hon'ble Supreme Court under Sections 30
and 31 of the Armed Forces Tribunal Act,
2007
however
the
petitioner
has
approached this Court under Article 226 of
2 All. Ram Harsh Vs. The U.O.I. & Ors.
431
the Constitution as the remedy provided by
way of appeal under Sections 30 and 31 of
the aforesaid Act is not efficacious for the
petitioner on account of the pitiable
condition of the petitioner.

23. The petitioner on the basis of his
condition has come up before this Court to
exercise
the
extraordinary
jurisdiction
under Article 226 of the Constitution. In
the writ petition, the petitioner claims that
he was working as a sepoy (cook) in the
Indian Army and further on account of his
pitiable condition the remedy of appeal is
not an efficacious remedy.

24. The pleadings are the foundation
of litigation. In pleadings, the necessary
and relevant particulars and material must
be included and unnecessary and irrelevant
material must be excluded. Pleadings in a
particular case are the factual foundation on
which the case of the litigant is based on.
The pleadings should be specific in the
petition and should disclose the complete
cause of action for approaching the court.
In case where the petitioner is praying for
intervention of this court in exercise of
powers
under
Article
226
of
the
Constitution
bypassing
the
statutory
alternate remedy, it is the duty of the
petitioner to bring complete facts and
circumstances by way of pleadings in the
writ petition as to why the remedy of
appeal (statutory alternative remedy) is not
an efficacious remedy in the facts and
circumstances of the case. If the factual
foundation for the cause of action in
approaching the court is missing or is
vague, then it is always open for the court
to deny the relief to the petitioner/litigant in
the
facts
and
circumstances
of
the
particular case.

25. In the present case, the factual
foundation with regard to the remedy of
appeal being not efficacious is pleaded in
paragraph 4 and 35 of the writ petition and
the same is quoted hereinbelow :-

"4. That the petitioner states that
though he has an alternative remedy to
approach Hon'ble Supreme Court by way
of an appeal under section 30 and 31 of the
Armed Forces Tribunal Act, 2007 against
the impugned Order of the Hon'ble
Tribunal but owing to his pity condition
that remedy will not prove equally
efficacious for him. He is an old person
with various age related ailments and
complications and aged about 73 years.
His wife died on 29th May, 2017 in a road
accident leaving him alone in this world as
his two sons who are married are living
separately and not with the petitioner. The
copy of the Death Certificate of petitioner's
wife dated 21st July, 2017 issued by
Allahabad Municipal Corporation and the
copy of the FIR bearing case crime Number
505 of 2017 under Section 279 and 304A
IPC, Police Station-Dhoomanganj, District
Allahabad lodged regarding the accidental
death of petitioner's wife are being
collectively filed herewith and marked as
Annexure No.1 to the Writ Petition.

35.That
the
petitioner
has
an
alternative remedy to approach the Hon'ble
Supreme Court under Section 30 and 31 of
the Armed Forces Tribunal Act, 2007
against the impugned order of the Hon'ble
Tribunal but owing to his pity condition
that remedy will not prove equally
efficacious for him, therefore he is
constrained to invoke the extraordinary
jurisdiction of this Court under Article 226
of the Constitution of India, on the
following amongst other grounds."
432 INDIAN LAW REPORTS ALLAHABAD SERIES

26. A perusal of the aforesaid
paragraph 4 and 35 of the writ petition
would demonstrate that the petitioner has
preferred the present writ petition and has
sought the bypassing of alternative remedy
on the ground that the petitioner is an old
person with various age related ailments
and complications and that his wife has
expired on 29th May, 2017. The petitioner
has also filed the death certificate of his
wife as annexure 1 to the writ petition.

27. The primary ground for bypassing the
alternative remedy and for entertaining the writ
petition is that the petitioner is suffering from
old age related ailments and complications. It is
to be seen that the petitioner has not filed any
medical certificate in support of his pleadings
nor has brought on record any document to
demonstrate that the petitioner is not physically
fit to approach the Supreme Court. The
petitioner has also not stated the details of the
ailments on account of which the petitioner is
seeking intervention of this court. It is also to be
seen that the petitioner has not laid the
foundation for bypassing the remedy of appeal
in the writ petition nor has proved by
documentary evidence that his physical
condition is not such that the petitioner would
be able to travel to New Delhi.

28. The petitioner has also stated that the
petitioner has two sons however they are not
living with him. It is to be noted that the
pleadings in respect of the sons not living with
the petitioner are wholly vague in nature as the
petitioner has not stated that his sons have
refused to assist him in availing the statutory
alternative remedy nor the petitioner has
brought on record any evidence showing the
place where the sons of the petitioner are
residing.

29. The petitioner in the past has been
contesting the litigation before the Armed
Forces Tribunal, Lucknow whereas the
petitioner is stated to be residing at
Allahabad. Once the petitioner is in the
position
to
contest
the
litigation
at
Lucknow then it was the duty of the
petitioner to have brought on record the
material
circumstances
which
are
preventing the petitioner from approaching
the statutory alternative remedy of appeal
before the Supreme Court and a bald
allegation that the petitioner is suffering
from ailment without giving any details of
the ailments and without there being any
material particulars about the plea of the
petitioner, the plea of the petitioner cannot
be accepted.

30. The country is witnessing a
revolution in the digitalisation activity. The
digitalisation
is
not
only
about
implementation
of
technology.
It
encompasses the transformation of the
courts and justice delivery system using
technology
in
order
to
enable
the
experiences to be better, effective and
within the reach of the ordinary citizens.
The digitalisation is bridging the gap
between the courts and the litigant. The
process of digitalisation has enabled the
litigant to approach the various forum of
justice delivery system and the issue of
distance of the courts have been effectively
addressed. The Apex Court has put in place
various digitalisation processes including
addressing
the
court
through
video
conference. Further, with the advancement
of
technology
and
telecommunication
including internet services the litigant is
empowered
to
approach
his
counsel
through telecommunication/Internet. The
process of digitalisation and technology
advancement has further been accelerated
during the pandemic. The digitalisation and
technology are playing a crucial role in
ensuring the efficient last mile delivery of
2 All. Sandeep Yadav Vs. Armed Forces Tribunal, Lucknow & Ors.
433
services to citizens. Even during the
pandemic the courts have delivered justice
to the citizens without the citizens being
physically present at the place where the
court is situated and in this respect the role
of digital technology has been crucial. A
citizen has all the means in place to
approach the Supreme Court using the
digital
process
and
technology.
The
Internet,
emails,
e-filing
and
video
conference have revolutionised the way a
person can communicate and avail Justice.
In the recent past, the country has
witnessed "work from home" as an
important tool for the working class and on
the same footing various measures have
been taken by the apex court for enabling
the citizens to get "justice at doorstep" and
the distance between the citizen and the
apex court is of no consequence as a result
of the digital process. The alternative
digital channel being put in place by the
Apex Court for justice delivery can always
be availed by the petitioner to approach the
statutory remedy under the Armed Forces
Tribunal Act. Once the alternate channel is
available to the petitioner by using
telecommunication and digital technology,
the plea of the petitioner that the present
writ petition may be entertained is not
acceptable.

31. Once the petitioner has not
demonstrated before this Court that there
exists
special
circumstances
and
his
physical
disability
is
such
that
the
petitioner is not in a position to approach
the Apex Court, the writ petition cannot be
entertained.
A
generalized
and
bald
statement has been made by the petitioner
in the writ petition with regard to his
physical condition and ailment. However,
no specific ailment has been described in
the writ petition in order to permit this
Court to assess the physical condition of
the petitioner. On the basis of vague and
bald statement, the petitioner cannot be
permitted to bypass the alternative remedy
of appeal.

32. In the result, we do not find any
good reason to by-pass the statutory
alternative remedy provided under the
Armed Forces Tribunal Act, 2007. The writ
petition is dismissed on the ground of
statutory alternative remedy available to the
petitioner 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.
----------
(2022)02ILR A433
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Writ-A No. 19332 of 2021

Sandeep Yadav ...Petitioner
Versus
Armed Forces Tribunal, Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Rang Nath Pandey, Sri Rahul Pandey

Counsel for the Respondents:
A.S.G.I., Sri Arvind Nath Agrawal

A. Civil Law - Constitution of India1950-Article 226 - Armed Force Tribunal
Act, 2007-Section 30, 31 - challenge todismissal
order-Petitioner
was
discharged from his service being failed
in final-test in military training-Tribunal
dismissed the original application for
paying
salary
with
consequential
benefits during the pendency of the