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2008 Supreme(Ker) 699
High Court of Kerala
V. Giri, J.
Lt Col Mahender Singh Yadav - Appellant
Versus
Union of India & Ors - Respondent
W.P.(C) No. 23376 of 2007
Decided On : 22-08-2008
Territorial jurisdiction under Art.226 of the Constitution of India is essential for the court to entertain a writ petition.
Headnote:
Promotion - Indian Army - Army Act - Section 3, Section 4 - The court considered the challenge to the non-selection and promotion of the petitioner to the rank of Colonel under the provisions of the Army Act and the Regulations made thereunder.
Fact of the Case:
The petitioner, a Lieutenant Colonel in the Indian Army, challenged the non-selection and promotion to the rank of Colonel. He contested the proceedings of the selection board and the affirmation thereof by the appellate authority under the provisions of the Army Act and the Regulations made thereunder.
Finding of the Court:
The court found that it lacked territorial jurisdiction to entertain the writ petition, as no material or integral portion of the cause of action had arisen within its jurisdiction.
Issues: The principal issue was the jurisdiction of the court to entertain the writ petition, considering the location of the cause of action and the parties involved.
Ratio Decidendi: The court's decision was based on the lack of territorial jurisdiction, as the selection board's assessment of the petitioner's service was conducted outside the court's territorial jurisdiction.
Final Decision: The writ petition was dismissed on the ground that the court lacked territorial jurisdiction to entertain and dispose of the petition.
V. Giri, J.
1. The petitioner, who is a Lieutenant Colonel in the Indian Army, challenges the action of the respondents in not selecting and promoting him to the rank of Colonel. He also challenges the proceedings of the selection board and the affirmation thereof by the appellate authority in terms of the provisions of the Army Act and the Regulations made thereunder.
2. The petitioner was initially enrolled as a Havildar and was granted promotion as the Second Lieutenant in 1985. He was then promoted as Captain and transferred to the office of Judge Advocate General in 1994. He was subsequently promoted as a Major. While so, he was granted a time scale promotion as a Major. He then appeared for the test conducted for regular selection to the post of Major in April, 1996 and 1997. But he passed in April, 1998. He was given a substantive promotion as a Major only in April, 1999. The selection to the post of Lieutenant Colonel from among Majors is conducted by the Selection Board 4 SB. The petitioner was empanelled for the post of Lieutenant Colonel with effect from 14/09/2003 and was granted substantive promotion with effect from 15/12/2004. While so, he was considered by the Selection Board 3 SB in April, 2004 as a fresh case. He was not empanelled. But, at the same time, his juniors, respondents 4 and 5 were empanelled as evidenced by Ext. P9 proceedings. The petitioner then preferred a complaint, Ext. P10. A partial redress was granted to him as per Ext. P17 order and his case was directed to be considered by way of a review (fresh). He was not empanelled and Ext. P27 evidences a fresh decision taken in this regard by the selection board. He preferred Ext. P28 statutory complaint which was rejected under Ext. P29. Thereafter the first review was held in May, 2007. Again, the petitioner was not empanelled. Though a statutory complaint could have been laid against the same, it has not been done. Essentially, the petitioner challenges Ext. P9, the proceedings of Selection Board 3 SB, relating to the selection in which respondents 4 and 5 were empanelled, Ext. P17 order which disposes of his complaint Ext. P10 (to the extent to which only a partial redressal was given to him), Ext. P27 evidencing the results of the Special Review (Fresh) conducted by 3 SB in September, 2006 and Ext. P29 by which the petitioner statutory complaint Ext. P28 was rejected.
3. Several grounds have been taken up in the writ petition. It is contended that the very constitution of 3 SB, which considered the petitioners case, pursuant to Ext. P17 order by way of a Special Review (Fresh) was illegal because the Board should mandatorily have had the presence of the Commanding Officer of the petitioner, which it did not. The directions issued in Ext. P17 order were not borne in mind by the Selection Board, which conducted the Special Review (Fresh). The grounds raised in the statutory complaint have not been considered. There is arbitrariness writ large on the face of the proceedings by which the petitioner was decided to be not empanelled, the petitioner juniors, respondents 4 and 5, at the same time, have been considered. Apparently, certain adverse remarks made against the petitioner were not communicated to him in time. But these were taken note of by the selection board. If there were adverse remarks, they should have been communicated to the petitioner, at the first instance and he should have been given an opportunity to seek an expunction of the same. That was also not done. The entire proceedings are vitiated, it is contended.
4. A detailed counter affidavit has been filed by the official respondents and a separate counter affidavit has been filed by the contesting respondents. The petitioner has filed a reply affidavit and the respondents have filed an additional counter affidavit as well.
5. I heard learned counsel for the petitioner Sri. S. P. Aravindakshan Pillai, learned Advocate General Sri. C. P. Sudhakara Prasad, on being instructed by
