BRIG.MALKIYAT SINGH DNLLAT Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner it holding the rank of Brigadier in the Indian Army and is posted at Army Training Command, Shimla, with effect from 27 -6 -1995. He is aggrieved by his non -selection for promotion to the rank of Major General by a Selection Board, held on 21/22 -10 -1994. According to him, the reason for his non selection is his A. C. Rs. for the periods 30 -12 -1992 to 30 -6 -1993 and 1 -7 -1993 to 30 -6 -1994 initiated by Major General S. C. Mehra, respondent No 3, under whom he was commanding 19 Infantry Brigade located at Damana near Jammu, in the State of Jammu and Kashmir. He had filed a non -statutory complaint against his second A. C. R on 30 -9 -1994 which was partially accepted by the Chief of Army Staff as conveyed to the petitioner by letter dated 20 -4 -1995 (Annexure P -16). He had also preferred statutory complaint against his super session to the rank of Major General which was rejected by order dated 11 -10 -1995 (Annexure P -18), subject to expunction of remarks stated therein The petitioner has impugned both these annexures besides the A.C. Rs and has prayed that respondents No. 1 and 2 may be directed to constitute a selection board to consider him for promotion to the rank of Major General from the due date.

(2.) Respondents No 1 and 2 and respondent No, 3 have opposed the writ petition on merits by filing separate reply affidavits. Respondent No. 3 has also taken a preliminary objection that no part of cause of action has arisen within the territory of Himachal Pradesh, as such, this court has no jurisdiction to entertain this writ petition. During the course of arguments, learned Counsel appearing for the respondents has pressed this preliminary objection, therefore, we propose to decide the same before hearing the writ petition on merits. In reply to the preliminary objection, learned Counsel for the petitioner has vehemently urged that since the order dated 11 -10 -1995 (Annexure P -18) was communicated to the petitioner at Shimla whereby his statutory complaint against non -selection for promotion to the rank of Major General was rejected, cause of action in part has arisen within the territorial jurisdiction of this court. It is further stated by the learned Counsel that the order dated 29 -2 -1996 (Annexure P -19) which contains the panel of officers approved for promotion to the rank of Major General and wherein the name of the petitioner is not mentioned, also came to his knowledge at Shimla. Further, the letter dated 15 -7 -1996 (Annexure P -22) filed alongwith rejoinder to the reply of respondents No. 1 and 2, conveying to the petitioner that he was not selected for promotion to the rank of Major General in review Selection Board, was also received by him at Shimla According to the learned Counsel for the petitioner, these facts further constitute a part of cause of action arising within the jurisdiction of this Court. In support of his contention, the learned Counsel for the petitioner has referred to a catena of case law of different High Courts which we will discuss hereinafter.

(3.) The first authority is of Bombay High Court in Damomal Kausomal Raisinghani v. Union of India and others, AIR 1967 Bombay 355, wherein while deciding the question of territorial jurisdiction in affirmative, the learned Judges have held that since the case in which the impugned order was passed was heard in Bombay and the effect of the impugned order fell upon the petitioner at Ullasnagar in the State of Maharashtra where he was residing at the relevant time, the part of cause of action had arisen within the State of Maharashtra, as such, the High Court of Bombay had the jurisdiction to entertain the writ petition.