VISHNUKRISHNAN NAMBOODIRI Vs. P N KRIPAL

JUDGEMENT

(1.) In all these 9 petitions the questions raised and the relief claimed are substantially the same. The petitioners are officers attached to the Travancore - Cochin State Forces stationed at Trivandrum. They were originally enrolled as Officers of the Travancore Nayar Brigade as per the Brigade Standing Orders issued under the Nayar Brigade Act, Act VI of 1079 of Travancore; and by virtue of the Commission granted to them they are holding their respective positions in the Travancore - Cochin State Forces. The petitioners in O.P. No. 15/51 and 16/51 are occupying the rank as Captains, while all the other petitioners are occupying the rank as Majors in the State Forces. With the formation of the Travancore - Cochin State as per the Covenant entered into by the Rulers of Travancore and Cochin with the concurrence of the Government of India on 1.7.1949, the erstwhile Travancore State Forces became the Armed Forces of the Travancore - Cochin State. Even before the formation of the Travancore - Cochin State, the Rulers of the States of Travancore and Cochin had executed instruments of accession in favour of the Government of India in respect of the three subjects, Defence, Communications and Foreign Affairs. Subsequent to the integration of the two States, His Highness the Raj Pramukh executed an instrument of accession on behalf of the Travancore - Cochin State, conceding in favour of the Dominion of India, jurisdiction in respect of Defence, Communications and Foreign Affairs pertaining to the State. Later on, by a proclamation issued by H.H. the Raj Pramukh on 24.11.1949, the Travancore - Cochin State acceded to the Union of India and the Constitution of India was accepted and the Constitution for the Travancore - Cochin State also. By Cl. 2 of Art.259 of the Constitution, the Armed Forces of the State became part of the Armed Forces of the Union Subject to the conditions laid down in Cl. 1 of the same Article. As a preliminary step in furtherance of the assimilation and absorption of the State Forces into the regular Indian Army, these petitioners and other Officers of the Travancore - Cochin State Forces were ordered to appear before the Indian Army Services Selection Board. The Board graded these petitioners as unacceptable. On the strength of such a grading by the Indian Army Services Selection Board, the Army Headquarters ordered the release of these petitioners from their ranks in the Army on certain specified dates. Notices of such release were also served on the petitioners. The grading of these Officers as Unacceptable by the Indian Army Services Selection Board and the consequent order for the release of these petitioners are impeached by them as illegal and void, and accordingly they have filed these petitions seeking relief against the enforcement of those release orders. All these petitions are filed under Art.226 of the Constitution and the petitioners have prayed that this Court may be pleased to issue a writ in the nature of mandamus directing the counter petitioners not to release the petitioners from their respective ranks in the Army, but to retain them in such ranks with Indian Army rates of pay, allowances and emoluments or, in the alternative, directing the counter petitioners to provide the petitioners with suitable other employments on terms no less advantageous, or to pay them reasonable compensation, or to retire them on proportionate pension.

(2.) In O.P. No. 67/1950 the counter petitioners are (1) Brigadier P.N. Kripal, Commandant, Travancore - Cochin State Forces, Trivandrum, (2) Captain C.S. Gautam, Adjutant, Training Centre Travancore - Cochin State Forces, Trivandrum and (3) The Chief Secretary to the Government of Travancore - Cochin, Trivandrum. In all the other petitions the counter petitioners are four in number, viz., (1) The Union of India, (2) The Commander-in, Chief, Indian Army, (3) the Travancore - Cochin State represented by the Chief Secretary to Government, Trivandrum, and (4) Brigadier P.N. Kripal, Commandant, Travancore - Cochin State Forces, Trivandrum. All the counter petitioners have entered appearance and have objected to the sustainability of these petitions. The Government Pleader appears on behalf of the Travancore - Cochin State, and the Advocate General appears for all the other counter petitioners. On behalf of these counter petitioners a counter affidavit has been filed, setting forth the grounds of objection to the substainability of the several petitions.

(3.) One of the objections raised on behalf of the counter petitioners is that this Court has no jurisdiction to entertain the present petitions for the issue of a writ in the nature of mandamus against the Military authorities in respect of the proceedings taken under the Military Law. Ordinarily, the Civil Court has no power to interfere with matters of Military Law. Courts will not interfere with the administration of Military Law by the properly constituted tribunals acting within their jurisdiction. Matters which are placed within the jurisdiction of Military tribunals or authorities constituted under the Military law must be determined by such authorities themselves and their decisions cannot be reviewed or set side by civil courts. It was ruled in R. v. Army Council Ex.P. Ravenscroft (1917) 2 K.B. 504 that civil courts will not interfere with matters relating to Military Law prescribed in the rules for the guidance of Officers or with the proceedings of a Military Court of enquiry or with an action that may be taken by the Army Council. This principle of the common law has been embodied in Cl. 4 of Art.227 of the Constitution of India. That clause deals with the High Courts power of superintendence over all courts and Tribunals within its jurisdiction. In Cl. 4 it is stated that nothing in this Article shall be deemed to confer on a High Court the powers of superintendence over any Court or Tribunal constituted by or under any law relating to the Armed Forces. The general power conferred on the High Court under Art.226 of the Constitution has to be construed subject to the limitation imposed by Cl. 4 of Art.227. In the present petitions the allegation put forward by the petitioners is that the proceedings which have led up to the passing of orders directing their release from their ranks in the Army, have not been passed by any authority lawfully constituted under the provisions of the Military law in force in the State and as such the entire proceedings are ultra vires and consequently void. They have also contended that in directing them to appear before the Army Services Selection Board they have been discriminated as against other officers of the Indian Army and that such discrimination is repugnant to the fundamental right guaranteed by Art.16 of the Constitution. If, as complained of by the petitioners, there has been any violation of the fundamental rights guaranteed under the Constitution and if the entire proceedings resulting in the orders for their release from their ranks in the Army are shown to be void ab initio, the petitioners will certainly be entitled to the protection of their rights by means of a writ in the nature of mandamus as prayed for by them. It cannot be said that the Court has no jurisdiction to relieve against unauthorised or illegal acts of military authorities affecting the fundamental rights of persons in military service. In Heddon v. Evans (1919) 35 T.L.R. 642 it was held that the Court can interfere when the authority constituted under military law acts without jurisdiction or in excess of jurisdiction and does something which would be a wrong at common law. Accordingly I hold that in view of the allegations made in these petitions this Court has jurisdiction to entertain the petitions and is bound to examine the question as to how far the allegations are well founded and tenable.