NATHULAL GURJAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petitions are heard together as it involves common question of law. The petition of Bhoop Singh was earlier transferred to Armed Forces Tribunal (for short "AFT"). It has been sent back to this Court vide order dated 27.04.2011 holding that unless applicant is enrolled in the Indian Army and is subjected to the Army Act, the Tribunal has no jurisdiction to hear and decide the application. In view of order of AIT dated 27.04.2011, the writ petition is again listed before this Court. The question involved in the present writ petitions is about the jurisdiction, inasmuch as, both the petitioners appeared in selection for different posts. The grievance of petitioner/s is in regard to selection thus the writ petitions were filed before this Court.

(2.) Learned counsel Mr. Sunil Samdaria submits that unless a candidate is enrolled or appointed in Army, the jurisdiction does not lies with the Armed Forces Tribunal (for short "AFT") under the provisions of Armed Forces Tribunal Act, 2007 (for short "Act of 2007"). Referring to the definition of service matters as given under Section 3(o) of the Act of 2007, it is submitted that jurisdiction of AFT comes in picture when it is matter in relation to the persons subject to Army Act of 1950 (for short "Act of 1950"), Navy Act, 1957 and Air Forces-Act, 1950. The aforesaid acts came in picture when a candidate is already enrolled or appointed. Reference of few provisions of Act of 1950 is given, more specifically, Section 2 of the Act of 1950 which provides as to who are the persons subjected to the Act. The aforesaid provision is quoted hereunder:

(3.) Learned counsel has further given reference of Section 10, 13, 14, 15 and 18 of the Act of 1950. It is to show the mode of commission, appointment and enrollment under the Act of 1950. A reference of tenure of service as given under Section 18 is made in view of opening word of Section 3(o)(ii) of the Act of 2007. It is stated that appointment or commission of a candidate is when the president grants, commission of an officer or a junior commission officer or appoint any person as warrant officer in the regular army. Hence, any controversy or litigation in regard to pre-appointment has to be addressed by this Court and not by the AFT. The mode of enrollment as given under Section 14 and the validity of enrollment given under Section 15 of the Act of 1950 was elaborately referred so as Section 13 of the Act of 1950 to indicate the procedure for enrollment of the officer. It is accordingly prayed that keeping in mind the language of Section 3(o) of the Act of 2007 so as the provisions of Act of 1950, the jurisdiction to hear and decide the matter in regard to any controversy prior to appointment lies in the jurisdiction of this Court and not by the AFT.