Kerala High Court
Vijayan Cv vs Union Of India on 8 April, 2021
W.P.(C).No.7239/2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(C).No.7239 OF 2021(D)
PETITIONERS:
1 VIJAYAN CV
AGED 46 YEARS
S/O. C.V NARAYANAN, SUBEDAR MAJOR,
(JE E AND M(JC 305549W),
CHELLATHANVEETTIL HOUSE, KOOTTUMUGHAM (PO),
SREEKANDAPURAM (VIA),
KANNUR (DIST), KERALA - 670631.
2 RAJEEV J
AGED 50 YEARS
S/O. JANARDHANAN PILLAI, SUBEDAR MAJOR, (JE E
AND M (JC-3055538 K), GANGOTHRI HOUSE,
VETTILATHAZHAM, DECENT JUNCTION (PO),
KOLLAM (DIST), KERALA - 691577.
BY ADVS.
JAYAKRISHNAN.A
S.ARAVINDH
RESPONDENTS:
1 UNION OF INDIA
THROUGH SECRETARY, MINISTRY OF DEFENCE, NEW
DELHI - 110011.
2 UNION OF INDIA
THROUGH UNDER SECRETARY, MINISTRY OF DEFENCE, D
(WORK) -II), NEW DELHI - 110011.
W.P.(C).No.7239/2021
2
3 THE ADJUTANT GENERAL
ADJUTANT GENERAL'S BRANCH,
INTEGRATED HQ OF MOD (ARMY), NEW DELHI -
110011.
4 ENGINEER-IN-CHIEF
ENGINEER-IN-CHIEF'S BRANCH, KASHMIR HOUSE,
RAJAJI MARG, NEW DELHI - 110011.
5 DIRECTOR GENERAL (PERSONNEL)
MILITARY ENGINEER SERVICES, ENGINEER-IN-CHIEF
BRANCH, 1-KASHMIR HOUSE, NEW DELHI - 110011.
OTHER PRESENT:
SRI. P.VIJAYAKUMAR,A.S.G.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-03-2021, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
W.P.(C).No.7239/2021
3
JUDGMENT
Dated this the 8th day of April 2021
1. The writ petition is filed seeking the following reliefs:-
(i) issue a writ in the nature of a Writ of Mandamus or
any other appropriate Writ, order or direction, directing
the respondents to frame relevant recruitment rules for
further Technical promotion/appointment to the post of
AE for Military Cadre Jes.
(ii) direct the respondents to forbear from
implementing Letter Nos. B/42026/DPC/JE to
AE(Civ)/2020 & 2021/E1DPC dated 15 Feb 2021 and
B/42026/DPC/JE to AE(E/M)/2020 & 2021/E1DPC dated
15 Feb 2021 and Letter No:MES/20/2021 Promotion-
cum Posting order from JE (Civil) to AE (Civil) dated
10.03.2021 along with Letter No:MES/21/2021
Promotion-cum Posting order from JE(E/M to AE (E/M)
dated 15.03.2021 issued by Respondent No.5, Director
General (Personnel) till framing of relevant recruitment
rules for further Technical promotion to the post of AE
for Military Cadre JEs so as to ensure them the
opportunities for promotion.
(iii) To direct the respondents to grant the petitioners
with promotion to the post of AE.
(iv) to dispense with the production of the original
impugned notifications dated 15.02.2021, 10.02.2021
and 15.03.2021 issued by Respondent No.5 Director
General (Personnel).
2. The writ petition was noted as defective by the Registry on the
ground that the matter falls within the jurisdiction of the
W.P.(C).No.7239/2021
Armed Forces Tribunal (herinafter referred to as the 'AFT').
This Court had directed the numbering of the writ petition and
the consideration of the same specifically with regard to the
preliminary question of maintainability.
3. The learned counsel for the petitioners submits that the
petitioners seek an inclusion of the cadre of Junior Engineers
(Military Cadre) as a feeder category for promotion to the post
of AE. It is, therefore, contended that what is sought for, is
writ of mandamus and the Armed Forces Tribunal cannot
consider the prayers raised by the petitioner. It is further
contended that the jurisdiction of this Court is co-existant with
that of the Tribunal and that the existence of an alternate
remedy is not a reason for non-suiting the petitioner.
4. The learned ASGI appearing for the respondents would submit
that apart from the question of the matter falling within the
jurisdiction of the AFT, this Court also does not have the
W.P.(C).No.7239/2021
territorial jurisdiction to consider the matter, since the
petitioners are not working within the State of Kerala and no
part of the cause of action has arisen within the State of Kerala.
5. I have considered the considered the contentions advanced.
Section 3(o) of the Armed Forces Tribunal Act, 2007
(hereinafter referred to as the 'AFT Act) provides as follows:-
3.(o) "service matters", in relation to the persons subject to the Army Act,
1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and the Air Force Act,
1950 (45 of 1950), mean all matters relating to the conditions of their
service and shall include-
(i) remuneration (including
allowances), pension and other retirement
benefits;
(ii) tenure, including commission,
appointment, enrolment, probation, confirmation,
seniority, training, promotion, reversion,
premature retirement,superannuation, termination
of service and penal deductions;
(iii) summary disposal and trials where the
punishment of dismissal is awarded;
(iv) any other matter, whatsoever,
but shall not include matters relating to -
(i) order issued under section 18 of the
Army Act, 1950 (46 of 1950), sub-section (1) of
section 15 of the Navy Act, 1957 (62 of 1957) and
section 18 of the Air Force Act, 1950 (45 of 1950);
W.P.(C).No.7239/2021
and
(ii) transfers and postings including the
change of place or unit on posting whether
individually or as a part of unit, formation or ship
in relation to the persons subject to the Army Act,
1950 (46 of 1950), the Navy Act, 1957 (62 of 1957)
and the Air Force Act, 1950 (45 of 1950);
(iii)leave of any kind;
(iv) summary Court-Martial except where
the punishment is of dismissal or imprisonment
for more than three months."
Section 14 of the AFT Act further provides as follows:-
"14. Jurisdiction, powers and authority in
service matters.- (1) Save as otherwise
expressly provided in this Act, the Tribunal shall
exercise, on and from the appointed day, all the
jurisdiction, powers and authority, exercisable
immediately before that day by all Courts (except
the Supreme Court or a High Court exercising
jurisdiction under articles 226 and 227 of the
Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a
person aggrieved by an order pertaining to any
service matter may make an application to the
Tribunal in such form and accompanied by such
documents or other evidence and on payment of
such fee as may be prescribed.
(3) On receipt of an application relating to service
matters, the Tribunal shall, if satisfied after due
inquiry, as it may deem necessary, that it is fit
for adjudication by it, admit such application;
but where the Tribunal is not so satisfied, it may
dismiss the application after recording its
reasons in writing.
W.P.(C).No.7239/2021
6. In view of the provisions referred and the prayers sought
for, I am of the opinion that the prayers sought for are
perfectly within the jurisdiction and competance of the
AFT. Moreover, the sole fact that the petitioners are
presently residing in Kerala or that they had received the
communications referred to in Kerala would not be
enough to confer territorial jurisdiction of this Court to
consider the matter unless at least a part of the cause of
action arises within the jurisdiction of this Court.
7. In the above view of the matter, even in a case where the
jurisdiction of this Court is not specifically ousted by the
provisions of the AFT Act, I am of the opinion that it is for
the petitioners to approach the Tribunal, specifically
vested with jurisdiction to try service matters of Armed
Services Personnel in the first instance. Though the
existence of alternate remedy is no bar for entertaining a
writ petition, the remedy before this Court being purely
W.P.(C).No.7239/2021
discretionary in nature, there is no compulsion that this
Court must entertain a writ petition even there is
efficacious alternate remedy available and an objection
has been raised with regard to the territorial jurisdiction
as well. No justifiable reason has been stated by the
petitioner for approaching this Court without going before
the AFT. Moreover, the contention raised by the
petitioner that the prayers raised by the petitioner do not
fall within the jurisdiction of the AFT is completely
unfounded.
8. The AFT being empowered to consider the question as
raised by the petitioner, I am of the opinion that it is for
the petitioner to take up the challenge before the
appropriate AFT at the first instance.
The writ petition fails. The same is accordingly dismissed,
without prejudice to the contentions raised by the
W.P.(C).No.7239/2021
petitioners and their right to approach the AFT for
redressal of their grievances.
sd/-
Anu Sivaraman, Judge
sj
W.P.(C).No.7239/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF RELEVANT PAGES OF
REGULATIONS OF MILITARY ENGINEER
SERVICES (RMES)
EXHIBIT P2 TRUE COPY OF SRO-32 DATED 27.04.2011
RECRUITMENT RULES FOR APPOINTMENT OF
CIVILIAN JES IN MES
EXHIBIT P3 TRUE COPY OF SRO-56 DATED 10.06.2008
RECRUITMENT RULES OF PROMOTION OF
CIVILIAN JE TO AE IN MES
EXHIBIT P4 TRUE COPY OF SRO-56 DATED 16.03.2016
RECRUITMENT RULES OF PROMOTION OF
CIVILIAN JE TO EE IN MES
EXHIBIT P5 TRUE COPY OF LIST OF PROMOTION CUM
POSTING ORDER OF JE TO AE E AND M VIDE
LETTER NOS.MES/31/2018 DATED 31.08.2018
EXHIBIT P5A TRUE COPY OF LIST OF PROMOTION CUM
POSTING ORDER OF JE TO AE E AND M VIDE
LETTER NOS.MES/16/2019 DATED 27.03.2019
EXHIBIT P5B TRUE COPY OF LIST OF PROMOTION CUM
POSTING ORDER OF JE TO AE E AND M VIDE
LETTER NOS.MES/34/2019 DATED 03.07.2019
EXHIBIT P6 TRUE COPY OF REPRESENTATION GIVEN BY
THE 2ND PETITIONER TO 3RD RESPONDENT
DATED 16.01.2021
EXHIBIT P7 TRUE COPY OF REPRESENTATION GIVEN BY
THE 1ST PETITIONER TO 3RD RESPONDENT
DATED 18.01.2021
W.P.(C).No.7239/2021
EXHIBIT P8 TRUE OF LETTER NO.B/42026/DPC/JE TO
AE(CIV)(/2020 AND 2021/E1DPC DATED 15
FEB 2021 AND B/42026/DPC/JE TO SE(E0
/M)/2020 & 2021/EIDPC DATED 15.02.2021
EXHIBIT P9 TRUE COPY OF LETTER OF 4TH RESPONDENT
DIRECTING THE 5TH RESPONDENT FOR TAKING
FURTHER ACTIONS ON THE REPRESENTATIONS
OF THE PETITIONERS DATED 16.02.2021
EXHIBIT P10 TRUE COPY OF LETTER NO.MES/20/2021
PROMOTION-CUM-POSTING ORDER FROM JE
(CIVIL) TO AE (CIVIL)DATED 10.03.2021
EXHIBIT P11 TRUE COPY OF LETTER NO.MES /21/2021
PROMOTION -CUM POSTING ORDER FROM JE
9E/M) TO AE (E/M) DATED 15.03.2021
/True copy/
PS to Judge
