Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10131 OF 2016

[Arising out of SLP(C) NO. 31556 OF 2013]

Mohammed Ansari ... Appellant

Versus

Union of India & Ors. ...Respondents

J U D G M E N T

Dipak Misra, J.

The appellant was appointed as an Assistant Executive

Engineer (E&M) vide order dated 03.06.1985 in Border Roads

Engineering Services (BRES) by the competent authority of

the Government of India, Ministry of Shipping and Transport.

In due course, he was promoted to the post of Executive

Engineer (E&M) on 30.05.1997 and thereafter promoted to

the grade of Superintending Engineer (E&M) in General

Reserve Engineering Force (GREF) of Border Roads

Organization in the pay scale of Rs.12000-375-16500/- with

effect from the date he assumes the charge of the post. The

2

appellant after completion of more than requisite years of

service was not granted non-functional financial upgradation

for officers of Organised Group A and that compelled him to

make representation to the concerned authorities but the

same were turned down on the ground that he had not

fulfilled the stipulated command posting of two years. Being

aggrieved by the said communication, the appellant preferred

Original Application No. 102 of 2012 before the Central

Administrative Tribunal, Guwahati Bench, Guwahati.

2.The respondent filed a preliminary objection regarding

jurisdiction of the tribunal. The tribunal decided the issue in

favour of the appellant vide order dated 18.06.2012. The

tribunal referred to its own decision in Ramkali Mishra &

Ors. v. Union of India passed by the Lucknow Bench

wherein it has been held as follows:-

“9. From what has been discussed above, the

applicant, who is a directly recruited personnel of

G.R.E.F., is governed by Rules of 1965 except for

those rights which are restricted by S.R.O. 329 as

amended by SRO 364 and 330 issued under section

4 of the Act of 1950 and read with Article 33 of the

Constitution of India, in view of this, this Tribunal

has jurisdiction to entertain the present O.A. filed

against the order of removal passed against the

applicant under Rules of 1965.”

3

Being of this view the tribunal opined that it has

jurisdiction to entertain the original application.

3.Dissatisfied with the order of the tribunal, the

respondents preferred W.P. (C) No. 4074 of 2012 seeking

quashment of the order passed by the tribunal. The High

Court by the impugned order dated 2.8.2013 posed the

following question:-

“Whether a member of the GREF can be regarded as

member of Armed Forces, for, such a member, if

regarded, in law, as a member of the Armed Forces,

then, would the provisions, embodied in the

Administrative Tribunals Act, 1985, not be available

to such a member?

4.The High Court referred to the Constitution Bench

decision in R. Viswan & Ors. v. Union of India & Ors

1

,

reproduced various passages from the said authority and also

the order passed in S.L.P. (C) No. 8096 of 1995 (Union of India

v. Smt. Vidyawati) and came to hold as follows:-

“In the light of the decision, reached by the

Supreme Court, in Vidyawati’s case (supra), one can

have no escape from the conclusion, and we do

conclude, that as far as Central Administrative

Tribunal is concerned, a member of the GREF is not

covered, in the light of the decision in R. Viswan

(supra) read with the decision in Vidyawati’s case

1

(1983) 3 SCC 401

4

(supra), by the provisions of the Administrative

Tribunals Act, 1985, and, hence, a member of the

GREF would be disentitled from invoking the

jurisdiction of the Central Administrative Tribunal.”

5.Thereafter, the High Court addressed the issue whether

a member of the GREF is covered by the provisions embodied

in the Armed Forces Tribunal Act, 2007 (for brevity, “the 2007

Act”). The Court adverted to the provisions of the Army Act,

1950 (for short, “the 1950 Act”), the provisions contained in

the 2007 Act, the Central Civil Services (Control,

Classification and Appeal) Rules, 1965, the authority in

Union of India & Ors. v. Sunil Kumar Sarkar

2

, and

eventually arrived at the following conclusion:-

“32. What surfaces from the above discussion is

that the present respondent, as a member of the

GREF and a member of the Armed Forces, cannot,

in the light of the decision, in R. Viswan (supra)

read with the decision, in Vidyawati’s case(supra),

and could not have taken recourse to the provisions

of the Administrative Tribunals Act, 1985.

Consequently, the learned Central Administrative

Tribunal has/had no jurisdiction in the matter of

the petitioner’s (i.e., the present respondent’s)

grievance as regards refusal to grant him financial

upgradation and, at the same time, the

respondent’s grievance shows that even the Armed

Forces Tribunal cannot redress, and could not have

redressed, his grievance as regards refusal to grant

him financial upgradation. The remedy of the

2

(2001) 3 SCC 414

5

respondent, therefore, lies in making appropriate

application in the High Court, under Article 226 of

the Constitution of India, or in instituting

appropriate suit for remedy of his grievances.”

6.Challenging the said order, it is contended by

Ms. Priya Hingorani, learned counsel for the appellant that

the High Court has failed to appreciate that the nature of

grievance raised is adjudicable before the Central

Administrative Tribunal and as a fact after determining the

issue of jurisdiction which was raised as a preliminary issue,

the tribunal has dealt with the controversy and granted the

relief which has gone unassailed and in such a situation, the

High Court should have declined to interfere. Learned counsel

would further submit that the reliance placed by the High

Court on the authorities in R. Viswan (supra) and Sunil

Kumar Sarkar (supra) is founded on an inapposite

appreciation, for the claim of the appellant is absolutely

different. Additionally, it is urged that the delineation as

regards lack of jurisdiction of the Armed Forces Tribunal

suffers from fallacious reasoning. Lastly, it is canvassed that

this Court may finally determine the forum and allow the

appellant to prosecute his remedy, for he cannot have a

6

grievance without a forum to agitate.

7.It is further urged that the High Court has failed to

appreciate the impact and effect of the clarificatory circular

issued by the office of Director General, Border Roads dated

6

th

June, 2012 as a consequence of an indefensible view has

been expressed by the High Court which is required to be

annulled.

8.Ms. Pinky Anand, learned Additional Solicitor General

appearing for the respondents contends that the High Court

has appositely held that the Central Administrative Tribunal

has no jurisdiction to dwell upon the matters relating to

employees of General Reserve Engineering Force which

constitutes a part of the Border Roads Development Board

(BRDB). It is her submission that the Armed Forces Tribunal

does not have jurisdiction in terms of exceptions carved out

under SRO 329 and 330 which have been issued by the

Government in exercise of its power under Section 4(1) of the

1950 Act. It is put forth that these exceptions and these

exceptions exclude the GREF from the purview of the 1950

Act in certain cases which pertain to service matters. On that

basis, the learned counsel would urge that Section 2(1) of the

7

2007 Act though applies to all persons subject to the 1950

Act, yet regard being had to the language employed in SRO

329 and 330, the matters related to the service conditions of

GREF would be governed by the Central Civil Service Rules,

1965. Therefore, submits the learned senior counsel, it is

only the High Court that can entertain a lis relating to service

dispute under Article 226 of the Constitution of India.

9.It is not in dispute that the appellant is a member of

GREF in Border Roads Engineering Services. In R. Viswan

(supra), the Constitution Bench was engaged in the

interpretation of Article 33 of the Constitution and with the

issue whether Section 21 of the 1950 Act read with Chapter

IV of the Army Rules, 1954 is within the scope and ambit of

Article 33 and, if it is, whether Central Government

Notifications Nos. SRO 329 and 330 dated September 23,

1960 making, inter alia, Section 21 of the 1950 Act and

Chapter IV of the Army Rules, 1954 applicable to the General

Reserve Engineering Force are ultra vires that Article since the

General Reserve Engineering Force is neither an Armed Force

nor a Force charged with the maintenance of public order.

The larger Bench dealing with the same adverted to the

8

primary functions of GREF, the provisions of the 1950 Act

and opined that so far as the personnel of GREF are

concerned, they are partly drawn from the Army and partly by

direct recruitment. Army personnel are posted in GREF

according to a deliberate and carefully planned manning

policy evolved with a view to ensuring the special character of

GREF as a force intended to support the Army in its

operational requirements. The posting of Army personnel in

GREF units is in fact regarded as normal regimental posting

and does not entitle the Army personnel so posted to any

deputation or other allowance and it is equated with similar

posting in the Army for the purpose of promotion, career

planning etc. The tenure of Army personnel posted in GREF

units is treated as normal Regimental Duty and such Army

personnel continue to be subject to the provisions of the 1950

Act and the Army Rules, 1954 whilst in GREF. The Court

further ruled that the Army personnel who form an important

segment of GREF, even the directly recruited personnel who

do not come from the Army are subjected to strict Army

discipline having regard to the special character of GREF and

the highly important role it is called upon to play in support

9

of the Army in its operational requirements. Since the

capacity and efficiency of GREF units in the event of outbreak

of hostilities depends on their all time capacity and efficiency,

they are subjected to rigorous discipline even during peace

time, because it is elementary that they cannot be expected

suddenly to rise to the occasion and provide necessary

support to the Army during military operations unless they

are properly disciplined and in fit condition at all times so as

to be prepared for any eventuality.

10.After adverting to the constitutional validity of Section

29 of the 1950 Act, the Court deliberated upon SRO 329 and

330 issued under the said Act and the Army Rules 1954 and

expressed thus:-

“The history, composition, administration, organisa-

tion and role of GREF which we have described

above while narrating the facts clearly show that

GREF is an integral part of the Armed Forces. It is

undoubtedly a departmental construction agency as

contended on behalf of the petitioners but it is dis-

tinct from other construction agencies such as Cen-

tral Public Works Department etc. in that it is a

Force intended primarily to support the Army in its

operational requirement. It is significant to note

that the Border Roads organisation, which is in

overall control of GREF was originally created as

part of Army Headquarters and it was only later, for

reasons of high policy, that it was separated from

10

Army Headquarters and placed under the Border

Roads Development Board.”

11. Elaborating further, the Constitution Bench opined that

GREF units carry out essentially those tasks which are

otherwise carried out by Army Engineering Regiments and

they provide engineering support to the Army both during

peace time as also during hostilities. Dwelling upon the

conditions of service and various facets, the Court ruled that

the training includes not only drill, marching and saluting

but also combat training including physical training such as

standing exercises, beam exercises, rope work, route

marches, etc. and combat engineering training including field

engineering, handling of service explosives, camouflage,

combat equipment, bridging, field fortifications, wire

obstacles, etc. Moreover, the directly recruited personnel are

taken up only after they voluntarily accept the terms and

conditions of employment which include, inter alia, conditions

5(iv), 5(v), 5(vi) and 5(xi) and the said conditions make it clear

that the directly recruited personnel may be required to serve

anywhere in India and outside India and when directed, they

would have to proceed on field service and if required, they

11

would also be liable to serve in any Defence Service or post

connected with the defence of India. The Court further noted

that it is also stipulated in these conditions that on their

appointment, the directly recruited personnel would have to

wear the prescribed uniform while on duty and that they

would be subject to the provisions of the 1950 Act and the

Army Rules, 1954 as laid down in SROs Nos. 329 and 330 for

purposes of discipline and hence, it is abundantly clear that

GREF is an integral part of the Armed Forces and the

members of GREF can legitimately be said to be members of

the Armed Forces within the meaning of Article 33 of the

Constitution.

12.In Sunil Kumar Sarkar (supra) a general court martial

under the provisions of the 1950 Act was initiated against the

respondent for certain allegation of defrauding the Border

Road Organisation in which he was working as

Superintendent, Buildings and Roads, Grade II. On

conclusion of the proceeding, he was found guilty and

sentenced to undergo rigorous imprisonment for one year.

The order of conviction was confirmed by the competent

authority. During the said period, the authorities acting

12

under Rule 19 of the 1965 Rules issued a show cause notice

as to why a suitable order should not be passed against him.

The authority on the conclusion of the said departmental

enquiry, dismissed the respondent from service. The review

petition filed by the respondent therein did not meet with

success. The conviction under the 1950 Act and the

dismissal under the Army Rules was challenged before the

Calcutta High Court in a writ petition and the learned Single

Judge allowed the writ petition directing the authorities to

pass a fresh order containing reasons. The said order was

assailed in intra-court appeal and the Division Bench allowed

the appeal opining that the court martial proceedings as well

as disciplinary proceedings initiated against him were

vitiated. This Court, being moved by the Union of India,

allowed the appeal and quashed the judgment of the Division

Bench. However, in that context it observed that in the

course of the argument, a doubt was raised as to

maintainability of the concurrent proceedings initiated

against the respondent by the authorities, for the respondent

had been punished for the same misconduct by them under

the 1950 Act and as also under the 1965 Rules and in such a

13

situation, it would amount to double jeopardy and thereby

violating Article 14 of the Constitution of India. Dealing with

the said facet, the Court held:-

“Having considered the arguments addressed in this

behalf, we are of the opinion that so far as the con-

current proceedings initiated by the Organisation

against the respondent both under the Army Act

and the Central Rules are concerned, they are unex-

ceptionable. These two proceedings operate in two

different fields though the crime or the misconduct

might arise out of the same act. The court-martial

proceedings deal with the penal aspect of the mis-

conduct while the proceedings under the Central

Rules deal with the disciplinary aspect of the mis-

conduct. The two proceedings do not overlap. As a

matter of fact, Notification No. SRO-329 dated

23-9-1960 issued under the Central Rules and un-

der sub-sections (1) and (4) of Section 4 of the Army

Act makes this position clear. By this notification,

the punishments that could be meted out under the

Central Rules have been taken out of the purview of

the court-martial proceedings under the Army Act.

We further find support for this view of ours in the

judgment of this Court in R. Viswan v. Union of In-

dia.”

13.The aforesaid decision makes it clear that the

proceedings under the 1950 Act as well as the 1965 Rules are

maintainable and do not amount to double jeopardy. The

principle that is deducible is that the person aggrieved under

the 1950 Act at that juncture can approach High Court and

similarly, the same person aggrieved by the imposition of

14

punishment under the disciplinary proceeding can challenge

the same under Article 226 of the Constitution before the

High Court. Thus, it is graphically clear that this Court did

not think that the aggrieved party can agitate the grievance

before the Central Administrative Tribunal under the 1985

Act.

14.In this regard, we may refer to the SRO 329 issued by

the Government of India in exercise of its power under

Section 4(1) of the 1950 Act. It reads as follows:-

“SRO 329 dated 23-9-1960

In exercise of the powers conferred by sub-sections

(1) and (4) of Section 4 of the Army Act, 1950 (46 of

1950), the Central Government hereby:

(a) applies to the General Reserve Engineer Force,

being a force raised and maintained in India under

the authority of the Central Government, all the

provisions of the said Act with the exception of

those shown in Schedule ‘A’ subject to the modifica-

tions set forth in Schedule ‘B’; and

(b) directs that the officers mentioned in the first

column of Schedule ‘C’ shall exercise or perform in

respect of members of the said force under their

command the jurisdiction, powers and duties inci-

dental to the operations of the said Act, specified in

the second column thereof.”

15.The aforesaid circular carves out certain exceptions.

15

These exceptions include the GREF from purview of the 1950

Act in certain cases pertaining to service matters, in

particular. To appreciate the controversy, it is pertinent to

mention the exceptions which feature in Schedule A. They

read as follows:-

“SCHEDULE-A

EXCEPTIONS

SECTIONS 10, 11, 13 to 17, 20, 22 to 24, 43,

44 CLAUSES (d), (e), (f), (g) and (k) of Section 71,

74 to 78 clauses (e), (f) and (j) of Section 80 and

clauses (a) Section 84.”

The aforesaid exceptions clearly show that the 1950 Act

has not been applied in entirety to the members of GREF.

16.In this regard, it is pertinent to reproduce Section 2(a) of

the Administrative Tribunals Act, 1985, which reads as

follows:-

“2. Act not to apply to certain persons : The

provisions of this Act shall not apply to –

(a)any member of the naval, military or air forces

or of any other armed forces of the Union;”

17.Section 3(q) of Administrative Tribunals Act, 1985,

which is also relevant is reproduced below:-

“3(q) “service matters”, in relation to a person, means

all matters relating to the conditions of his service in

connection with the affairs of the Union or of any

State or of any local or other authority within the

16

territory of India or under the control of the

Government of India, or, as the case may be, of any

corporation or society owned or controlled by the

Government, as respects-

(i) remuneration (including allowances), pension and

other retirement benefits;

(ii) tenure including confirmation, seniority,

promotion, reversion, premature retirement and

superannuation;

(iii) leave of any kind;

(iv) disciplinary matters; or

(v) any other matter whatsoever;”

18.On a plain reading of both the provisions, it is noticeable

that the language of the provisions is absolutely plain and the

Act does not apply to any member of the armed forces and,

therefore, the High Court is justified in holding that Central

Administrative Tribunal does not have the jurisdiction to deal

with the controversy. In this regard, reliance has been placed

in the order passed on January 9, 1998 in the case of

Vidyawati (supra):-

“As it appears to us that members of General

Reserve Engineer Force cannot move the Central

Administrative Tribunal in view of the decision of

this Court in R. Viswan & Ors. v. Union of India &

Ors. (AIR 1983 SC 558), that impugned decision of

17

the Central Administrative Tribunal cannot be

sustained and therefore is set aside. Liberty is,

however, given to the respondent to move the High

Court for appropriate relief if that respondent so

desires. If such writ petition is filed, it will be

appreciated if that High Court disposes of the same

at an early date in view of the respondent is an aged

widow.”

19.Be it noted the High Court has relied on the same. It

has referred to the decision in L. Chandra Kumar v. Union

of India

3

, but we are disposed to think that it is not

necessary to be adverted to the same, as there can be no

trace of doubt that the Central Administrative Tribunal has

not been conferred jurisdiction to deal with the lis in

question.

20.The next issue that emerges for consideration is whether

after coming into force of the 2007 Act, it will be the Armed

Forces Tribunal which shall deal with the controversy or the

High Court would still have the original jurisdiction under

Article 226 of the Constitution of India. The Statement of

Objects and Reasons of the 2007 Act clearly postulate that

the Armed Forces Tribunal is constituted for the adjudication

of complaints and disputes regarding service matters and

3

(1997) 3 SCC 261

18

appeals arising out of the verdicts of the court-martial of the

members of the three services (Army, Navy and Air Force) to

provide for quicker and less expensive justice to the members

of the said Armed Forces of the Union. Section 2 which deals

with the applicability of the 2007 Act, reads as follows:-

“2. Applicability of the Act : (1) The provisions of

this Act shall apply to all 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).

(2) This Act shall also apply to retired personnel

subject to the Army Act, 1950 (46 of 1950) or the

Navy Act, 1957 (62 of 1957) or the Air Force Act,

1950 (45 of 1950) including their dependants, heirs

and successors, in so far as it relates to their service

matters.”

21.Section 3(o) of the 2007 Act deals with jurisdiction of the

Armed Forces Tribunal in respect of service matters. It is 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 condi-

tions of their service and shall include –

(i) remuneration (including allowances), pension and

other retirement benefits;

(ii) tenure, including commission, appointment, en-

rolment, probation, confirmation, seniority, training,

19

promotion, reversion, premature retirement, super-

annuation, termination of service and penal deduc-

tions;

(iii) summary disposal and trials where the punish-

ment of dismissal is awarded;

(iv) any other matter, whatsoever,

but shall not include matters relating to—

(i) orders 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); 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 per-

sons 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 pun -

ishment is of dismissal or imprisonment for more

than three months;

22.Section 14 of the 2007 Act relates to jurisdiction, power

and authority of the tribunal, which is extracted below:-

“14. Jurisdiction, powers and authority in ser -

vice matters.—(1) Save as otherwise expressly pro-

vided 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

20

226 and 227 of the Constitution) in relation to all

service matters.

(2) Subject to the other provisions of this Act, a per-

son 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 in-

quiry, as it may deem necessary, that it is fit for ad-

judication by it, admit such application; but where

the Tribunal is not so satisfied, it may dismiss the

application after recording its reasons in writing.

(4)xxxxxxxxxx

(5)xxxxxxxxxx”

23.The language employed in Section 2 of the 2007 Act the

lays the postulate that it will apply subject to the 1950 Act.

Section 4 of the 1950 Act occurs in Chapter II which comes

under the heading ‘Special provisions for the application of

Act in certain cases”, which reads as follows:-

“4. Application of Act to certain forces under

Central Government.-(1) The Central Government

may, by notification, apply, with or without

modifications, all or any of the provisions of this Act

to any force raised and maintained in India under

the authority of that Government, and suspend the

operation of any other enactment for the time being

applicable to the said force.

21

(2) The provisions of this Act so applied shall have

effect in respect of persons belonging to the said

force as they have effect in respect of persons

subject to this Act holding in the regular Army the

same or equivalent rank as the aforesaid persons

hold for the time being in the said force.

(3) The provisions of this Act so applied shall also

have effect in respect of persons who are employed

by or are in the service of or are followers of or

accompany any portion of the said force as they

have effect in respect of persons subject to this Act

under clause (i) of sub- section (1) of section (2).

(4) While any of the provisions of this Act apply to

the said force, the Central Government may, by

notification, direct by what authority any

jurisdiction, powers or duties incident to the

operation of these provisions shall be exercised or

performed in respect of the said force.

24.The statement of objects and reasons of the 2007 Act, as

is manifest, mandates adjudication of complaints and

disputes regarding service matters of the members of the

Armed Forces. There is no dispute that members of the

GREF belong to the Armed Forces. The constitution of GREF,

as has been understood by this Court, has to be appreciated.

It is a departmental construction agency responsible to build

and maintain roads in the North and North Eastern border

areas of the country. It is different from other construction

22

agencies like CPWD, PWD, etc, inasmuch as, it is a Force

raised and maintained by the Central Govt. to support the

Army in latter’s operational role at the border areas. The

GREF functions under the Border Road Development Board,

and its Units are modeled on the lines of Army Units/Sub

Units like Task Force, Road Construction Companies, Road

Maintenance Platoons etc.

25.To appreciate the controversy at hand, it is imperative to

understand what has been held in R. Viswan (supra). The

question that was raised before the Constitution Bench was

as to whether members of GREF could be said to be the

members of the Armed Forces within the meaning of Article

33 so as to apply Section 21 of the 1950 Act to them and the

larger Bench, as has been stated earlier, held that since the

members of GREF in the matters of discipline, are governed

both by the provisions of 1950 Act and CCS(CCA) Rules,

therefore, it will be left to the discretion of the authority

whether to proceed against the employee under the 1950 Act

or under the CCS(CCA) Rules and rejected the contention on

the ground that the nature of the proceedings under both are

different, the former being penal and the latter merely

23

disciplinary in character. Therefore, R.Viswan (supra) is an

authority to the extent that the members of GREF though

may be termed as civilian officers, yet by the very nature of

the organisation, are treated to be an integral part of the

Armed Forces within the meaning of Article 33 of the

Constitution of India and would be subjected to penal action

under the provisions of the 1950 Act and Army Rules, 1954

and disciplinary action under CCS (CCA) Rules, 1965.

26.In this regard, it is apt to refer to the authority in Union

of India v. G.S. Grewal

4

. In the said case, the respondent, a

major in Army, was considered for promotion to the next

higher grade, i.e., Lt. Colonel, but could not be promoted after

specified number of attempts. He was finally superseded in

the Army and thereafter joined Directorate General of Quality

Assurances (DGQA) and secured temporary secondment

therein. In DGQA there was a provision vide OM dated

04.05.1993 that an officer finally superseded in Army would

not be entitled to permanent secondment. In Army, however,

pursuant to the report of a committee known as ‘A.V. Singh

Committee’, all officers holding rank of Major who had

4

(2014) 7 SCC 303

24

completed 13 years of service, were promoted to the rank of

Lt. Colonel irrespective of whether such officers had been

finally superseded or not. The respondent was promoted as

Lt. Colonel on 16.12.2004. However, the said policy was

discontinued on 12.10.2007 on the orders of the Government.

A policy for permanent secondment and promotion was

issued on 16.11.2007 providing that permanent secondment

will be restricted to the rank of Lt. Colonel and also that

officers once permanently seconded would continue in the

organisation till they retire and will also be considered for

promotion to higher grades against their vacancies. The

respondent was permanently seconded in DGQA on

10.04.2008 and also earned his next promotion to the rank of

Colonel on 22.10.2008 in DGQA. The Ministry of Defence,

however, issued an order dated 23.04.2010 stating that since

the policy of promotion had been discontinued in the Army,

the effect thereof was restoration of the earlier policy of 1993

in DGQA and, thus, no permanent secondment could be

given after discontinuation of the policy in the Army in the

year 2006. It was further provided that permanent

secondment already given would not be withdrawn, but no

25

further promotion shall be given to such officers. It was this

order which was successfully assailed before the Armed

Forces Tribunal. Before this Court, two contentions, namely,

(i) the tribunal could not have entertained the lis since there

was a decision by a coordinate bench of the tribunal holding

that it had no jurisdiction, and (ii) the order impugned having

been passed by the DGQA which is a civilian organisation,

the tribunal did not have jurisdiction to deal with the matter,

were raised.

27.The Court though remanded the matter principally on

the premise of the law laid down in Sub. Inspector Rooplal

v. Ltd. Governer

5

, yet in para 26 of the judgment, considered

the question as to what would be determinative in

considering the jurisdiction of the tribunal in the matters of

officers also subjected to the 1950 Act and Army Rules. It

observed as under:-

“We may point out that merely because the respon-

dent is subject to the Army Act would not by itself

be sufficient to conclude that the Tribunal has the

jurisdiction to deal with any case brought before it

by such a person. It would depend upon the sub -

ject-matter which is brought before the Tribunal

and the Tribunal is also required to determine as to

whether such a subject-matter falls within the defi-

5

(2000) 1 SCC 644

26

nition of “service matters”, as contained in Section

3(o) of the AFT Act. In Major General S.B. Akali

case

6

, the Principal Bench primarily went by this

consideration. The subject-matter was promotion to

the rank of Lieutenant General and this promotion

was governed by the Rules contained in the Policy of

DRDO and not under the Army Act. Therefore, in

the instant case, it is required to be examined as to

whether the relief claimed is entirely within the do-

main of DGQA or for that matter, the Ministry of

Defence or it can still be treated as “service matter”

under Section 3(o) of the AFT Act and two aspects

are intertwined and inextricably mixed with each

other. Such an exercise is to be taken on the basis

of documents produced by both the sides. That has

not been done. For this reason, we deem it proper to

remit the case back to the Tribunal to decide the

question of jurisdiction keeping in view these pa-

rameters.”

28.Thus, the Court clearly held that merely because the

respondent is subjected to the 1950 Act would not by itself be

sufficient to conclude that the tribunal had jurisdiction to

deal with any case brought before it by such a person. It

would depend upon the subject matter which is brought

before the tribunal and the tribunal is also required to

determine as to whether such a subject matter falls within

the definition of “service matter” as contained in Section 3(o)

of the 2007 Act.

29.At this juncture, it is appropriate to refer to SRO 329.

6

TA No. 125 of 2010, order dated 9.4.2010 (Tri)

27

Schedule A thereof, as stated earlier, carves out certain

exceptions. Certain provisions of the 1950 Act i.e. Sections

10, 11, 13 to 17, 20, 22 to 24 [falling under Chapter III of the

1950 Act dealing with commission, appointment and

enrolment], Section 43, 44 [falling under Chapter VI –

offences’ viz. fraudulent enrolment and false answers on

enrolment respectively and clauses (d), (e), (f), (g) and (k) of

Sections 71, 74 to 78, clauses 9e), (f) and (j) of Section 80 and

clause (a) of Section 84, falling under Chapter VII –

punishment] have been exempted in their application to the

civilian members of the GREF, for the civilian personnel of

GREF are not commissioned or enrolled or appointed under

the 1950 Act and they are not, therefore, members of the

‘regular Army’ as defined in Section 3(xxi) of the 1950 Act. It

is for this reason that certain provisions of the 1950 Act as

set out in Schedule B of the SRO 329 have been modified in

their application to the members of the GREF. This is

fortified by the fact that the GREF personnel are appointed as

civilian component of the force in various appointment(s)/

designation in GREF and notified with equivalent ranks in the

regular army for the purpose of the 1950 Act vide SRO 1001

28

dated 20

th

May, 1961.

30.In view of the statutory framework, it is demonstrable

that the 1950 Act and the Army Rules, 1954 have been

applied to civilian personnel of the GREF only for the purpose

of discipline. The reasons are obvious. The GREF is a force

raised and maintained under the authority of the Central

Government, its units are set up on the lines of the Indian

Army, it works with and under close coordination with

regular army in border areas, facilitates the Indian Army to

carry out its operational role, etc. Hence, it has been felt

appropriate that the 1950 Act should be made applicable to a

force raised and maintained by the Central Government as

considered necessary in the interest of discipline. The issue

can be perceived from a different perspective. The GREF

personnel are subjected by legislative scheme to dual

disciplinary control, and such an arrangement is permissible

as has been held in R. Viswan (supra). When the offence is

such that the provisions of the 1950 Act, as extended to

GREF, apply for the purpose of discipline, it will be open to

the competent disciplinary authority under the1950 Act, to

proceed against the delinquent under its provisions, and if

29

found guilty, award appropriate punishment. In this context,

we may give an example. If an offence is committed in

relation to an enemy, offences on active service, mutiny,

desertion, disobedience, etc., considering the nature and

gravity of the offence, it may warrant severe action against

the delinquent by way of trial by a court martial. In other

disciplinary cases, the competent authority may decide to

proceed under CCS(CCA) Rules, 1965 in which the maximum

permissible punishment is only ‘dismissal from service’.

31.In this backdrop, jurisdiction of the tribunal has to be

determined. As is seen, the 2007 Act has been made

applicable to persons subject to the 1950 Act, the Navy Act,

1957 and the Air Force Act, 1950, the retired personnel

subject to these Acts including their dependants, heirs and

successors insofar as it relates to their service matters. The

tribunal constituted in terms of Sections 4 and 5 thereof, is

vested with twin jurisdiction viz., jurisdiction, powers and

authority in service matters as provided in Section 14 and the

jurisdiction in matter of appeal against courts martial under

Section 15 of the Act.

32.The situation insofar as jurisdiction of the Armed Forces

30

Tribunal (AFT) to hear the appeals arising out of court martial

verdicts qua GREF personnel, however, appears to stand on a

different footing. It is because the provisions of Chapter VI

i.e. offences, Chapter VII i.e. punishment, Chapter X i.e.

‘courts martial’ etc. apply with full force, subject to minor

exceptions and modifications here and there, as applied to

GREF. Therefore, the provisions of the 1950 Act dealing with

various punishments inflicted by way of courts martial qua

GREF personnel as applied can be agitated before the AFT

and the AFT shall have jurisdiction to hear appeals arising

out of courts martial verdicts. There can be no doubt that in

respect of said matters the AFT shall have jurisdiction.

Denial of jurisdiction to the said tribunal would be contrary

to the 1950 Act and the provisions engrafted under the 2007

Act. To elaborate, right to approach the AFT by the personnel

of GREF who are tried by a court martial held under the very

same Act has to be recognised. At the same time, if the

punishment is imposed on GREF personnel by way of

departmental proceedings held under the CCS(CCA) Rules,

1965 then obviously the same cannot be agitated before the

AFT since the penalty in such cases will not be one under the

31

1950 Act but will be under the CCS(CCA) Rules, 1965. The

distinction, as the law exists in the present, has to be done.

33.From the aforesaid, the legal position that emerges is

that AFT shall have jurisdiction (i) to hear appeals arising out

of courts martial verdicts qua GREF personnel. To this extent

alone the AFT shall have jurisdiction. At the same time if the

punishment is imposed on GREF personnel by way of

departmental proceedings held under the CCS(CCA) Rules,

1965 the same cannot be agitated before the AFT and (ii) AFT

shall have no jurisdiction to hear and decide grievances of

GREF personnel relating to their terms and conditions of

service or alternatively put ‘service matters’.

34.At this stage, it is necessary to recapitulate that during

the pendency of the matter before the High Court, the Central

Administrative Tribunal had passed the final order on

5.11.2012 in favour of the appellant. Be that as it may, the

tribunal does not have the jurisdiction to deal with an issue

of upgradation or the nature of lis raised by the appellant

before it. In the absence of lack of inherent jurisdiction to

deal with the issue, the said judgment is a nullity. It has no

existence in law. It is well settled in law that the judgment

32

passed is a nullity if it is passed by a court having no

inherent jurisdiction. The decree to be called a nullity is to be

understood in the sense that it is ultra vires the powers of the

court passing the decree and not merely voidable decree. [See

Hiralal Moolchand Doshi v. Barot Raman Lal

Ranchhoddas

7

].

35.In view of the aforesaid, we dismiss the appeal and

concur with the view expressed by the High Court that it only

has the jurisdiction to deal with the controversy raised by the

appellant. The challenge was by the Union of India and its

functionaries to the order dated 18.6.2012 passed by the

tribunal negativing the preliminary objection raised by the

Central Government as regards the jurisdiction of the

tribunal. Thus, the grievance agitated by the appellant has

really not been addressed by any competent forum. His

grievance deserves to be dealt with in accordance with law.

In view of the obtaining situation, we grant liberty to the

appellant to approach the High Court for redressal of his

grievances within three months hence. We request the High

Court to dispose of the matter, if filed, on its own merits and

7

(1993) 2 SCC 458

33

not throw at the threshold on the ground of delay and laches.

There shall be no order as to costs.

..................................J.

[DIPAK MISRA]

..................................J.

[UDAY UMESH LALIT]

NEW DELHI

FEBRUARY 02, 2017.

ITEM NO.1B COURT NO.2 SECTION XIV

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

CIVIL APPEAL NO.10131 OF 2016

MOHAMMED ANSARI Appellant(s)

VERSUS

U.O.I & ORS Respondent(s)

Date : 02/02/2017 This appeal was called on for judgment today.

For Appellant(s) Mr. R.V. Kameshwaran, AOR

For Respondent(s) Ms. Pinky Anand, ASG

Mr. Ansh Singh Luthra, Adv.

Ms. Snidha Mehra, Adv.

Mr. D.S. Mahra, AOR

Hon'ble Mr. Justice Dipak Misra pronounced the judgment of the

Bench consisting of His Lordship and Hon'ble Mr. Justice Uday Umesh

Lalit.

The appeal is dismissed in terms of the signed reportable

judgment. There shall be no order as to costs.

(Gulshan Kumar Arora) (H.S. Parasher)

Court Master Court Master

(Signed reportable judgment is placed on the file)