BALKRISHNA RAM versus UNION OF INDIA AND ANR.

Citation: [2020] 2 S.C.R. 581 · Decided: 09-01-2020 · Supreme Court of India · Bench: DEEPAK GUPTA · Disposal: Dismissed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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BALKRISHNA RAM
v.
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 forces
Tribunal –  Whether an appeal against the order of Single Judge of
a High Court deciding a case related to armed forces personnel,
pending before High Court, can be transferred to the Armed Forces
Tribunal – Held: As per s. 14(1), Armed  Forces Tribunal can exercise
powers of all the Courts except the Supreme Court or High Court
exercising jurisdiction under Arts. 226 or 227 –  Judicial review  is
basic structure  – Power of judicial review vested with the High
Court cannot be taken away  – Power of Judicial review vests with
the High Court even with regard to the orders passed by the Tribunal
– High Court being a constitutional court, its order cannot be
challenged before any court other than Supreme Court  – Therefore
intra-court appeal pending before Division Bench of High Court
need not be transferred u/s. 34.
Jurisdiction:
Writ jurisdiction of High Court  – Scope of  –  Held: Writ
Courts normally refrain from exercising their extra-ordinary power,
if alternative efficacious remedy is available  –  This rule is rule of
prudence and not rule of law  – Existence of alternative remedy
does not oust the jurisdiction of High Court.
Jurisdiction of Armed Forces Tribunal  – Held: Transfer of
proceedings on the original side including cases in exercise of writ
jurisdiction, does not mean that the Tribunal can exercise all the
powers of the High Court.
Service Law:
Discharge from service  – Challenged  – Plea that even if the
candidate could not clear the aptitude test, he should have been
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
considered for appointment in some other post  – Held: The candidate
was considered for appointment to two categories, but could not
meet the height criteria in either of the posts – The candidate was
not fit for appointment.
Dismissing the appeal, the Court
HELD : 1.1 Section 14(1) of the Armed Forces Tribunal
Act, 2007 clearly provides that the Armed Forces Tribunal (AFT)
will exercise powers of all courts except the Supreme Court or
High Court exercising jurisdiction under Article 226 and 227 of
the Constitution of India.  Section 34 is very carefully worded. It
states that ‘every suit’, or ‘other proceedings’ pending before
any court including a High Court immediately before the
establishment of the Tribunal shall stand transferred on that day
to the Tribunal. The Legislature has clearly not vested the AFT
with the power and jurisdiction of the High Court to be exercised
under Article 226 of the Constitution.  There can be no manner
of doubt that the High Court can exercise its writ 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 the
AFT, the High Court may not exercise their extraordinary writ
jurisdiction because there is an efficacious alternative remedy
available but that does not mean that the jurisdiction of the High
Court is taken away.  In a given circumstance, the High Court
may and can exercise its extraordinary writ jurisdiction even
against the orders of AFT. [Para 10][587-F-G; 588-A-B]
1.2 Judicial review is a part of the basic structure of the
Constitution and the power of judicial review vested in the High
Courts and the Supreme Court cannot be taken away.  The power
of judicial review vests with the High Court even with regard to
orders passed by the AFT and this power is part of the basic
structure of the Constitution. [Para 11][588-C; 589-E]
1.3 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
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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 jur

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