Ramendra Singh vs Union Of India And 3 Others
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Allahabad High Court

Ramendra Singh vs Union Of India And 3 Others on 2 May, 2024

Author: Chief Justice

Bench: Chief Justice

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:79797-DB
 
Chief Justice's Court
 

 
Case :- WRIT - A No. - 4512 of 2022
 

 
Petitioner :- Ramendra Singh
 
Respondent :- Union Of India And 3 Others
 
Counsel for Petitioner :- Devendra Dahma
 
Counsel for Respondent :- A.S.G.I.,Salilendu Kumar Upadhyay
 

 
Hon'ble Arun Bhansali,Chief Justice
 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Devendra Dahma, learned counsel for the writ petitioner and Sri Salilendu Kumar Upadhyay, learned counsel for the respondents/Union of India.

2. Since a joint statement has been made by the learned counsel for the parties that the writ petition be decided on the basis of the documents available on record and they do not propose to file any affidavits, thus, the writ petition is being decided at the admission stage.

3. The case of the writ petitioner is that he was enrolled as a Sepoy clerk in Army Supply Crops (Supply) in 1963. While he was posted in 2nd Battalion Jummu & Kashmir Light Infantry (hereinafter referred to as '2nd JAK LI') stationed in peace station Roorki, on 07.04.1979, he was downgraded to medical category "CEE(P)" with restrictions for posting in a high altitude area. Thereafter, based on the medical report the Commandant Officer-II, Jammu & Kashmir Light Infantry post issuance of the show cause notice the writ petitioner was discharged from duties w.e.f. 01.05.1989. The writ petitioner claims to have preferred a representation on 10.07.1989, since the same was not decided so he preferred Civil Misc. Writ Petition No. 22164 of 1980 before this Court in which a mandamus was issued on 04.04.1991 to the Chief of the Army Staff, IHQ of MOD, New Delhi, second respondent to decide the said representation within the stipulated period and alleging non-compliance of the same, a Contempt Petition No. 634 of 1992 preferred which occasioned passing of a speaking order dated 07.07.1992 rejecting the representation of the writ petitioner. A recall application dated 16.09.2003 stated to have been preferred by the writ petitioner for recalling the order dated 07.07.1992 which came to be rejected on 14.01.2004.

4. Challenging the same, the writ petitioner preferred Civil Misc. Writ Petition No. 29176 of 2004 seeking following reliefs:

"(i) order, or direction in the nature of certiorari quashing the impugned order dated 07th July 1992 passed by respondent No. 2 served and communicated to the petitioner on 14th January 2004 and allow the appeal dated 25th April 1998 and representation dated 12th December 1991 and set aside the order of discharge dated 10th July 1979 passed by Officer-In-Charge Records Jammu and Kashmir Light Infantry.

(ii) order or direction in the nature of mandamus directing the respondents to consider the petitioner in service with effect from 01st May 1980 and allow all service benefits admissible to the petitioner. (iii) any other writ order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(iv) to award cost of the petition to the petitioner."

5. Consequent to the establishment of Armed Forces Tribunal, the said proceedings stood transferred to the Armed Force Tribunal, Lucknow which was registered as T.A. No. 535 of 2010 (Writ Petition No. 29176 of 2004 of Allahabad High Court) which on contest came to be dismissed on 08.04.2011 operative portion whereof reads as under:

"23. We find no illegality in the applicant not being brought before an Invaliding Medical Board as Invaliding Medical Board is only applicable to the persons who have been downgraded to the medical category "EEE (P)" and their discharge is carried out under the provisions of Rule 13(3) Item III(iii) of the Army Rules, 1954. The discharge order in the instant case has correctly been sanctioned by the Officiating Commander, 77 Mountain Brigade as per endorsement of the said officer dated 29.11.1979 on page 4 of Annexure SCA-1 and not by OIC Records, JAK LI. Under the circumstances the insistence of the applicant that the discharge should have been sanctioned on AFMSF-16 does not hold water.

24. The clarification given in Records JAK LI letter dated 08.04.1978 are primarily amplification to the policy laid down by respondents Nos. 1 and 2 and as such are meant for guidance of the Commanding Officers. In any case the proviso of sheltered appointment in dealing with such cases continues to be operative s explained in the amplification notes; paragraph 11 above refers.

25. We observe that the applicant has been granted service as well as disability pension for the services rendered by him in the Army from 09.12.1963 to 01.04.1980 and as such he has been duly compensated for the services rendered and disability accruing to him from military service.

26. Under the circumstances no interference in the impugned orders is called for. The Transferred Application does not succeed. The Transferred Application thus being devoid of merits is hereby dismissed.

27. No order however as to costs."

6. A review application came to be filed by the writ petitioner before the Armed Force Tribunal, Regional Bench, Lucknow which was registered as Review Application No. 19 of 2011 (In Re: T.A. No. 535 of 2010) which came to be dismissed on 21.10.2011 while holding as under:

"7. We have considered the arguments put forth by the learned Counsel for the applicant and find that all the points advanced by the learned Counsel have been considered in our Judgment and Order under review. In exercise of powers under review jurisdiction, unless there is an error apparent on the face of record the review of judgment cannot be gone into. Learned Counsel for the applicant has failed to point out any error apparent on the face of record except two inadvertent typographical errors.

8. The Review Application thus being devoid of merits is hereby dismissed.

9. No order however as to costs."

7. Assailing the orders dated 08.04.2011 passed in Transfer Application No. 535 of 2010 as well the order dated 21.10.2011 passed in Review Application No. 19 of 2011, the writ petitioner preferred a Civil Appeal (D) No. (s)1075 of 2012, Ravindra Singh Vs. Union of India in which on 10.05.2012, the following orders were passed:

"Heard.

Delay is condoned.

Appeal is dismissed."

8. Post dismissal of the Civil Appeal by the Hon'ble Supreme Court, the writ petitioner preferred a M.A. No. 2104 of 2016 (In Re: T.A. No. 535 of 2010) before the Armed Force Tribunal, Regional Bench, Lucknow which came to be dismissed on 09.03.2018.

9. Questioning the orders dated 09.03.2018 dismissing the Misc. Application No. 2104 of 2016, order passed in Transfer Application No. 535 of 2010 dated 10.04.2011 as well as the order dated 21.10.2011 passed in Review Application No. 19 of 2011, the present writ petition has been preferred seeking following reliefs:

"i). Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 9.3.2018 passed by Armed Forces Tribunal Regional Bench, Lucknow in M.A. No.2104/2016 in T.A. No. 535/2010 and order dated 8.4.2011, 21.10.2011 passed by Armed Forces Tribunal Regional Bench, Lucknow and allow the representation dated 12.12.1991 with due entitle promotion, full pay and allowances admissible from time to time with cost.

ii) Issue any other suitable writ order or direction which this Hon'ble Court may deem fit and proper in the fact and circumstances of the case.

iii) Award cost of the petition in favour of the petitioner."

10. Learned counsel for the writ petitioner has sought to argue on merits while contending that the orders passed by the respondents downgrading to medical category CEE(P), order dated 01.05.1989 discharging the writ petitioner from service, order dated 07.07.1992 rejecting the representation preferred by it and the dismissal of the recall application dated 16.09.2003 coupled with the orders passed by the Armed Force Tribunal, Lucknow in the transfer petition followed in review application and miscellaneous application cannot be sustained for a single moment as the contentions raised by the writ petitioner had not been considered in correct perspective. According to him, there were sufficient documents available on record post filing of application under Right to Information Act, 2005 on 31.01.2015 whereby certain information have been supplied to him which shows that his discharge from service was patent illegal and contrary to law.

11. Submission is that the respondent-authorities as well as the Armed Force Tribunal has passed an order based on incorrect facts and it was a clear cut case wherein the writ petitioner could not have been discharged from duties.

12. Countering the said submission, the learned counsel for the Union of India has argued that the writ petition preferred by the writ petitioner is not maintainable, particularly, when the order passed by the Armed Force Tribunal in Transfer Application No. 535 of 2010 dated 06.04.2011 and the order dated 21.10.2011 passed in Review Application No. 19 of 2011 was subject matter of challenge before the Hon'ble Apex Court and after the dismissal of the appeal on 10.05.2012, there was no occasion for the writ petitioner to have preferred a modification application.

13. Submission is that the order dated 09.03.2018 rejecting the Misc. Application No. 2104 of 2016 by the Armed Force Tribunal is perfectly legal and does not suffer from any illegality as in the guise of a miscellaneous application, the writ petitioner cannot reopen the issue which stands concluded up-to Hon'ble Apex Court. Additionally, it has been argued that the orders ought to be given finality and on the instance of a litigant, the proceedings cannot be reopened even in those cases, when the litigant alleges that it has come across the vital documents.

14. We have heard the learned counsel for the parties and perused the record carefully.

15. Facts are not in issue. It is not disputed that questioning the order dated 07.07.1992 rejecting the representation of the writ petitioner, the order dated 01.05.1989 discharging the writ petitioner as well as the order dated 14.01.2004 rejecting the recall application dated 16.09.2003, the writ petitioner preferred Writ Petition No. 29176 of 2004 before this Court which came to be transferred to the Armed Force Tribunal, Regional Bench Lucknow, T.A. No. 535 of 2010 which on contest came to be dismissed on merits vide order dated 08.04.2011. It is also not in dispute that a Review Application No. 19 of 2011 was preferred for reviewing the order dated 08.04.2011 which also came to be rejected on 21.10.2011.

16. Parties are in agreement that an appeal was preferred before the Hon'ble Supreme Court which came to be dismissed on 10.05.2012. Interestingly, the writ petitioner post dismissal of the appeal by the Hon'ble Apex Court after a period of four years preferred a miscellaneous application M.A. No. 2104 of 2016 before the Armed Force Tribunal, Regional Bench, Lucknow for recalling the order dated 21.10.2011 whereby the Review Application No. 19 of 2011 was dismissed. In the said modification application as apparent various grounds were raised which stood negated while dismissing the said application on 09.03.2018. Now after a period of approximately four years, the present writ petition has been preferred questioning the orders which has been passed noticed above.

17. The sequence of the events beyond shadow of doubt depict that the writ petitioner is trying to reopen an issue which has attained finality upto to the Hon'ble Apex Court. Moreover, there was no occasion for the writ petitioner to have preferred a miscellaneous application after dismissal of the review application which stood confirmed upto to the Hon'ble Apex Court and rightly so the miscellaneous application was turned down and rejected by the Armed Force Tribunal, Regional Bench, Lucknow. Merely possessing certain documents under the Right to Information Act which as per the writ petitioner is in his favour would not be a ground to re-open a proceeding as, in case, it is allowed then there would be no end to any proceedings.

18. Surprisingly, we find that the orders passed on 08.04.2011 and 21.10.2011 by the Armed Force Tribunal, Regional Bench, Lucknow dismissing the transfer application and review has again challenged in the present writ petition despite the fact that the same on challenge in earlier spell of litigation stood confirmed up to the Apex Court. Thus, the present one is a classic case of misuse of process of law in impunity.

19. In view of the foregoing discussion, we do not find any merit in the challenge raised by the writ petitioner. Accordingly, the writ petition is dismissed. However, looking to the age of the writ petitioner as apparent from the affidavit, we do not deem it appropriate to impose cost.

Order Date :- 2.5.2024

A. Prajapati

(Vikas Budhwar, J.) (Arun Bhansali, C.J.)