Members of the armed forces, including the Air Force, the Navy and the Army, can approach the High Courts to challenge the final decisions of the Armed Forces Tribunals (AFT) involving issues of pay, pension, promotion and discipline, the Delhi High Court has held. The Delhi HC’s ruling is likely to provide reprieve to a large section appellants whose only remedy until now was to petition the Supreme Court against the final order passed by an AFT.
A Bench of Justice Manmohan and Justice Navin Chawla said, “The remedy of appeal to apex court in a large number of cases may also prove to be ineffective for the members of the armed forces posted all over India as they may find it expensive and difficult to approach the apex court.”
The Central government, on the other hand, argued that members of the armed forces need not approach the High Courts against decisions of the AFTs as they have an alternative effective remedy of filing an appeal before the Supreme Court under Armed Forces Tribunal Act.
The Centre further argued that the Statement of Objects and Reasons of the Armed Forces Tribunal Act, 2007 clearly stipulates that the reason for the establishment of the tribunal was the large number of cases pending before the High Courts. It said if members of the armed forces are allowed to approach the High Court, “it would lead to the same situation [high pendency] once again”.
Advocate Ankur Chhibber, who represented some of the armed forces personnel before the High Court, argued that an appeal to the Supreme Court lies only in such cases where the question of general public importance is involved. Mr. Chibber said an appeal lies with the leave of the AFT and such leave cannot be granted unless it’s certified by the tribunal that a point of law of general public importance is involved in the decision passed.
He contended that matters concerning pay, pension, promotion and discipline are matters personal to the litigants and do not involve any substantial question of law of general public importance. Hence, no leave to appeal can be granted under Section 31 of the Armed Forces Tribunal Act.
The High Court clarified: “The jurisdiction of High Court under Articles 226 and 227 of the Constitution cannot be bypassed merely by making a provision for direct appeal to the Supreme Court against an order of a tribunal.”
It referred to the judgment of the Supreme Court in Rojer Mathew case, where the top court held that Article 226 of the Constitution does not restrict the jurisdiction of High Courts over the AFT, observing that the same can neither be tampered with nor diluted.
“The Constitution confers on the Constitutional Court [Supreme Court and High Courts] the power of judicial review, which is exclusive in nature. Judicial review goes some way to answer the age old question ‘who guards the guards?’” the High Court said.
The High Court’s decision came on a batch of petitions by various members of the armed forces challenging the orders of AFTs.
