Lt. Col. Brajesh Bahadur Singh v. The Union of India

petitioner had moved earlier before this Court in CWJC No. 4465 of 2008 and similar objection was raised about maintainability of that writ petition in view of the provisions contained in The Armed Forces Tribunal Act, 2007 (hereinafter referred to as the Patna High Court CWJC No.20027 of 2012 (6) dt.22-01-2013 Act, 2007 only). However, a Bench of this Court presided by Hon’ble the Chief Justice by a judgment and order dated

26.3.2011 passed in C.W.J.C. No. 5861 of 2004 and its analogous cases including aforesaid C.W.J.C. No. 4465 of 2008 over ruled that objection and held that the writ petition filed on behalf of the petitioner was maintainable. It is contended that in view of the aforesaid judgment and order dated 26.3.2011 passed in C.W.J.C. No. 5861 of 2004 and analogous matters, the present writ petition should also be heard and decided on merit after ignoring the objection raised by the Stamp Reporter. Learned counsel appearing on behalf of the petitioner, however, has very fairly conceded that the petitioner has, now, retired from service from the post of Lieutenant Colonel, and while he was in service of the Union of India, he was governed by the provisions of The Army Act 1950. Learned Assistant Solicitor General appearing on behalf of the respondents has questioned the maintainability of the present writ application before this Court. He submits that the issue regarding non-maintainability of the present matter before this Court is no longer res-integra and the issue has been conclusively decided by two Division Benches of our own High Court in the cases of Union of India & Ors. vs. I.C.38558Y Patna High Court CWJC No.20027 of 2012 (6) dt.22-01-2013 Colonel Sarat Chandra Mishra & Ors. (2012 (2) PLJR 101) and Union of India & Ors. vs. Ajay Kumar (2012 (3) PLJR 805). It is contended that in view of the ratio laid down by the aforesaid two Division Bench judgments as also the provisions contained in section 34 of the Act, 2007, the present writ petition is not maintainable before this Court, and if the petitioner is at all aggrieved by the impugned orders, he can approach the Armed Forces Tribunal constituted under the provisions of the Act 2007 for an appropriate relief. This Court has not gone into the merits of the claim raised on behalf of the petitioner and has heard the matter only on limited issue on question of maintainability of this writ petition before this Court. This Court finds that it is admitted case of the parties that while the petitioner was in service under the Union of India, he was governed by The Army Act, 1950. Section 2 of the Act 2007 would be relevant and has not been noticed either by the Hon’ble Chief Justice, while passing order dated 26.3.2011, referred to above, or in the aforesaid two Division Bench judgments of this Court. Therefore, section 2 of the Act 2007 is reproduced herein below:- “2: Applicability of the Act (1) The provisions of this Act shall apply to all persons subject to the Army Act, Patna High Court CWJC No.20027 of 2012 (6) dt.22-01-2013 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 2910), including their dependants, heirs and successors, in so far as it relates to their service matters.” On plain examination of section 2 of the Act 2007 it is apparent that the provisions of the Act 2007 shall be applicable with respect to the persons either serving or retired, who are/were governed by the provisions of the Army Act 1950, the Navy Act 1957 and the Air Force Act 1950. Admittedly, the petitioner was governed by the provisions of The Army Act, 1950 and coupled with the fact that this Court is bound by the two Division Bench judgments in the cases of Union of India & Ors. vs. I.C.38558Y Colonel Sarat Chandra & Ors (Supra) and Union of India & Ors. vs. Ajay Kumar (Supra), wherein it has been held that the remedy of such persons lies before the Armed Forces Tribunal constituted under the Act 2007. For the reasons recorded above, this writ petition is held to be not maintainable before this Court. It is, accordingly, Patna High Court CWJC No.20027 of 2012 (6) dt.22-01-2013 dismissed. However, if the petitioner, so advised, may approach the Armed Forces Tribunal constituted under the provisions of the Act 2007 for all the reliefs, which have been prayed for in the present proceeding. RPS/- (Birendra Prasad Verma, J)