Lt. Col. Mahender Singh Yadav v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE V.GIRI** **FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930** **WP(C).No. 23376 of 2007(G)** - **--------------------------------------** ## **PETITIONER:** - **-----------------** **LT. COL. MAHENDER SINGH YADAV, IC-43469, OFFICER-IN-CHARGE, LEGAL CELL, STATION HEADQUARTERS (ARMY), NAVAL BASE, KOCHI-682 004.** - **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.S.A.ANAND SMT.TISVY VINCENT** ## **RESPONDENTS:** - **-----------------------** **1. UNION OF INDIA,** - **REPRESENTED BY THE SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI.** **2. CHIEF OF THE ARMY STAFF, SOUTH BLOCK, ARMY HEADQUARTERS, NEW DELHI.** **3. MILITARY SECRETARY, SOUTH BLOCK, ARMY HEADQUARTERS, DHQ P.O., NEW DELHI-110 001.** **4. LT. COL. DEVENDRA SINGH, IC-45712,OFFICIATING DEPUTY JUDGE ADVOCATE GENERAL HQ I CORPS. C/O. 56 APO.** **5. LT. COL.V. CHAKRAVARTI, IC-45787,OFFICIATING DEPUTY JUDGE ADVOCATE GENERAL HQ 33 CORPS., C/O. 99 APO.** **6. LT.COL. D.K.AHLUWALIA, IC-45770, ASSISTANT JUDGE ADVOCATE GENERAL, HEADQUARTERS, WESTERN COMMAND, CHANDI MANDIR, HARYANA.** **ADVOCATE GENERAL SRI.SUDHAKARA PRASAD, ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 TO R3, SRI.JOHN MATHEW FOR R6,** - **SRI.THOMASMATHEW NELLIMOOTTIL,SR.PANEL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON 22/08/2008 DELIVERED THE FOLLOWIN:** **W.P.(C)23376/2007-G** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE SENIORITY LIST OF JAG OFFICERS AS ON 18/02/2005.** **EXT.P2: COPY OF THE PART II ORDER NO.203/2000 DATED 04/11/2000.** **EXT.P3: COPY OF THE LETTER/SIGNAL NO.392996/MS-14/JAG DATED 12/09/2003 OF THE COL. MS.14.** **EXT.P4: COPY OF THE PART II ORDER NO.AHQ/JAG/30/04 DATED 06/07/2004.** **EXT.P4(a): COPY OF THE COURSE CERTIFICATE.** **EXT.P5: COPY OF THE PART II ORDER NO.AHQ/JAG/37/05 DATED 03/10/2005.** **EXT.P6: COPY OF THE VCOAS COMMENDATION CARD DATED 13/01/2006.** **EXT.P7: COPY OF THE POLICY NO.04502/MS POLICY DATED 27/07/1995.** **EXT.P8: COPY OF THE LETTER NO.A/21509/SB/GEN./MS-5 DATED 09/03/2005.** **EXT.P9: COPY OF THE RESULTS OF SB NO.3 HELD IN APRIL 2006.** **EXT.P10: COPY OF THE NON-STATUTORY COMPLAINT BEFORE THE 2ND RESPONDENT, COAS DATED 23/05/2006.** **EXT.P11: COPY OF THE SUPPLEMENTARY COMPLAINT FILED BY THE PEITIONER TO EXT.P10.** **EXT.P12: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MILITARY SECRETARY, THE 3RD RESPONDENT DATED 06/06/2006.** **EXT.P13: COPY OF THE RELEVANT EXTRACT OF THE REGULATIONS FOR THE ARMY CONTAINING PARA 107.** **EXT.P14: COPY OF THE LETTER NO.A/68051/POSTING/MS-14/JAG DATED 08/06/2006 OF THE 3RD RESPONDENT.** **EXT.P15: COPY OF THE LETTER NO.392106/MS-14/JAG DATED 09/06/2006.** **EXT.P16: COPY OF THE LETTER DATED 21/12/2004 ALONG WITH A RELEVANT EXTRACT OF THE APPENDIX A THERETO.** **EXT.P17: COPY OF THE ORDER ON NON-STATUTORY COMPLAINT DATED 22/09/2006.** **EXT.P18: COPY OF THE MS POLICY LETTER NO.04502/MS POLICY DATED 18/11/2003.** **EXT.P19: COPY OF THE LETTER NO.04502/MS POLICY DATED 29/03/2004.** **EXT.P20: COPY OF THE RELEVANT EXTRACT OF A045/2001/MS ALONG WITH THE RELEVANT EXTRACT OF APPENDIX 'A' THERETO.** **EXT.P20(a): COPY OF THE ORDER NO.36501/3005/JAG/96/MS COMPLS. DATED 03/06/2003.** **WP(C) NO.23376/2007-G:** ## **EXT.P21: COPY OF THE LETTER NO.B/80088/JAG DATED 10/10/2006.** **EXT.P22: COPY OF THE LETTER NO.36501/3005/JAG/96/MS19 DATED 18/10/2006 TO MS 14.** **EXT.P23: COPY OF THE LETTER NO.43469/JAG/MS DATED 18/12/2006 ADDRESSED TO MS 19.** **EXT.P24: COPY OF THE LETTER NO.43469/JAG/MS DATED 16/03/2007.** **EXT.P25: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE COAS DATED 13/10/2006.** **EXT.P26: COPY OF THE LETTER NO.46439/PERS DATED 27/10/2006.** **EXT.P27: COPY OF THE LETTER NO.A/66044/NO.3 SB/MS14/A DATED 13/10/2006.** **EXT.P28: COPY OF THE STATUTORY COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 16/10/2006.** **EXT.P29: COPY OF THE ORDER NO.36501/3005/JAG/96/MS19/02/SC/2007-D(MS) DATED 23/04/2007.** **EXT.P30: COPY OF THE LETTER NO.A/18351/OBSN/JAG/83/MS4 D2 DATED 21/02/2006.** **EXT.P31: COPY OF THE LETTER NO.A/68501/MISC/MS-14/JAG DATED 21/11/2006.** **EXT.P32: COPY OF THE LETTER NO.A/1715/MS4 COORD DATED 23/11/2006.** **EXT.P33: COPY OF THE RELEVANT EXTRACT OF THE NEWS LETTER CONTAINING THE NEWS ITEM OF THE UNPRECEDENTED COMMENDATION OF THE PETITIONER AND THE OTHER OFFICER BY THE COAS.** **EXT.P34: COPY OF THE PHOTOGRAPH SHOWING COMENDATION CEREMONY PERSONALLY AWARDED BY THE COAS.** **EXT.P35: COPY OF THE FREDULT OF SB NO.4 IN RESPECT OF 1988 BATCH IN WHICH THE 4TH RESPONDENT AND JATINDRA SINGH WERE CONSIDERED AS FIRST REVIEW 1988 BATCH.** **EXT.P.36: COPY OF THE DECISION CARD DTD. 31 OCT. 2006 COMMUNICATED TO THE PETITIONER BY MS BRANCH LETTER DTD. 16 JAN. 2007, WHILE SERVING AT KOCHI.** **EXT.P.37: COPY OF APPRECIATION LETTER DTD. 29 JULY 2005 CONVEYING THE APPRECIATION OF THE COAS.** ## **RESPONDENT'S EXHIBITS:** **EXT.R1: COPY OF ARMY HEADQUARTERS LETTER NO.31525/P/M.S5B DTD. 06/05/1987.** **EXT.R6.A: COPY OF THE JUDGMENT OF DIV. BENCH OF ALLAHABAD HIGH COURT IN W.P. 15985/2002.** **EXT.R6.B: COPY OF THE COMMENDATION CARD FOR THE YEAR 2001 AWARDED BY GOC-IN-C, CENTRAL COMMAND.** **WP(C) NO.23376/2007-G:** ## **EXT.R6.C: COPY OF THE COMMENDATION CARD FOR THE YEAR 2002 AWARDED BY GOC-IN-C, CENTRAL COMMAND.** **EXT.R6.D: COPY OF THE ORDER DTD. 04/05/2007 OF THE CHIEF OF ARMY STAFF GIVING DUE REDRESS TO R.6.** **EXT.R6.E: COPY OF THE RESULT OF NO.3 SELECTION BOARD – MAY 2007 DTD. 12/07/2007.** **EXT.R6.F: COPY OF THE CERTIFICATE ISSUED BY THE LOK SABHA SECRETARIAT.** **EXT.R6.G: COPY OF THE CERTIFICATE ISSUED BY THE ARMY INSTITUTE OF BEHAVIOURAL (HEALTH) & ALLIED SCIENCES.** **EXT.R6.H: COPY OF THE CERTIFICATE ISSUED BY THE ICRC AND UNHRC.** **EXT.R6.I: COPY OF THE LAW OF PEACE OPERATIONS COURSE CERTIFICATE.** ## **//TRUE COPY//** **P.S. TO JUDGE.** **Rs/** ## **V.GIRI, J.** ## **-------------------------** ## W.P.(C).No.23376 of 2007 G ## **------------------------Dated this the 22[nd ] day of August, 2008.** ## **JUDGMENT** 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 **W.P.(C).No.23376 of 2007** **:: 2 ::** by the Selection Board 4 SB. The petitioner was empanelled for the post of Lieutenant Colonel with effect from 14.9.2003 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 **W.P.(C).No.23376 of 2007** **:: 3 ::** 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 3SB in September, 2006 and Ext.P29 by which the petitioner's 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 3SB, which considered the petitioner's 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's juniors, respondents 4 and 5, at the same time, have been considered. Apparently, certain adverse **W.P.(C).No.23376 of 2007** **:: 4 ::** 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 Sri.Thomas Mathew Nellimoottil, on behalf of respondents 1 to 3 and Sri.John Mathew learned counsel for the 6[th] respondent. 6. The principal objection taken up by Sri.C.P.Sudhakara Prasad, learned Advocate **W.P.(C).No.23376 of 2007** **:: 5 ::** General, was concerned with the question of jurisdiction of this court to entertain the writ petition. The contention is that no part of the cause of auction relating to the writ petition has arisen within the State of Kerala. The fortuitous circumstance whereby the petitioner is currently working within the State or even that the last among the orders challenged in the writ petition was served on him when he was stationed at Kochi cannot confer this court with the jurisdiction to entertain the petitioner's writ petition, essentially challenging as it were, the proceedings of the selection board which took place outside the State. It is further contended that if the proceedings of the selection board are challenged on the ground that the petitioner's service was not correctly assessed or that irrelevant factors have come into play, then again it is noteworthy that the entire service of the petitioner which came up for consideration by the selection Board which met in 2006 in the first instance and considered the petitioner's case or which met in September 2006 and considered the petitioner's case as a Special Review (Fresh) or **W.P.(C).No.23376 of 2007** **:: 6 ::** in the first review which was held in May, 2007 was rendered outside the State. Ext.P9 decision pursuant to the first assessment by 3SB which met in April, 2006 was communicated to the petitioner when he was in Delhi. The petitioner filed Ext.P10 non-statutory complaint when he was in Delhi. The selection board conducted a Special Review (Fresh) in September 2006 and the petitioner was in Delhi even then. The result of the Special Review (Fresh) was communicated to the petitioner on 30.12.2006 vide Ext.P27 when the petitioner was stationed in Delhi. Orders on the non-statutory complaint originally filed by the petitioner (Ext.P10) was communicated to the petitioner as Ext.P17 when he was in Delhi. The statutory complaint Ext.P28 preferred by the petitioner against Ext.P27 was so done when he was in Delhi. The petitioner is trying to make out a case that a portion of the cause of action in the writ petition has arisen within the territorial jurisdiction of this court on the ground that Ext.P29 order on Ext.P28 statutory complaint was served on the petitioner when he stood transferred to Cochin and he was stationed in Cochin. This is **W.P.(C).No.23376 of 2007** **:: 7 ::** not sufficient. Learned Advocate General referred to the decisions of the Supreme Court reported in Khajoor singh v. Union of India {AIR 1961 SC 532} followed in Alchemist Limited v. State Bank of Sikkim {AIR 2007 SC 1812} and the decisions of the Full Bench of this court reported in Nakul Deo Singh v. Deputy Commandant {1999(3) KLT 629} followed by a Division Bench in the decision reported in Prakash v. Food Corporation of India {2007(4) KLT 895} to contend for the position that this court lacks territorial jurisdiction to entertain and dispose of the writ petition. 7. Learned Advocate General made submissions on the merits of the contentions raised by the petitioner as well. Learned counsel for the contesting respondents also made submissions supporting the orders which have been impugned in the writ petition. They adopted the submissions of the learned Advocate General on the question of territorial jurisdiction. 8. Learned counsel for the petitioner Sri.S.P.Aravindakshan Pillai, on the other hand, referred to the judgment of the Supreme Court in Dinesh Chandra Gahtori v. Chief of Army Staff **W.P.(C).No.23376 of 2007** **:: 8 ::** {2001(9) SCC 525} and Bikash Bhushan Ghosh v. Novartis India Ltd. {2007(5) SCC 591} as also the judgment of a Division Bench of this court in O.P.No.13834/95. Referring to the judgment in Dinesh Chandra Gahtori v. Chief of Army Staff {2001(9) SCC 525}, he submitted that the Chief of Army Staff could be sued anywhere in the country and so also since the proceedings of the Union of India are also challenged in this writ petition, it is open to the petitioner to challenge the same before this court. 9. The question of territorial jurisdiction under Article 226 of the Constitution will have to be decided in the light of several pronouncements of the Supreme Court and of the Full Bench and Division Bench, dealing with the said aspect. Article 226(1) reads as follows: “Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including [writs in the nature of habeas corpus, mandamus, prohibition, quo **W.P.(C).No.23376 of 2007** **:: 9 ::** warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose]”. 10. One of the questions which arose for consideration before the 7 Judge Bench of the Supreme Court in Khajoor singh v. Union of India {AIR 1961 SC 532} was whether the Government of India, as such, can be stated to be located at New Delhi. The contention was that the Government of India is functioning throughout the territory of India and therefore, every High Court has the power to issue a writ against it as it must be presumed to be located within the territorial jurisdiction of the State High Courts. This contention was considered dealt with in paragraphs 13 and 14 of the judgment. Paragraph 14 of the judgment is relevant in this context: “The seat of a Government is sometimes mentioned in the Constitutions of various countries but many a time the seat is not so mentioned. But, whether the seat of a Government is mentioned in the Constitution or not, there is undoubtedly a seat from which the Government as such functions as a fact. What Art.226 requires is residence or location as a fact and if therefore there is a seat from which the Government functions as a fact **W.P.(C).No.23376 of 2007** even though that seat is not mentioned in the Constitution the High Court within whose territories that seat is located will be the High Court having jurisdiction under Art.226 so far as the orders of the Government as such are concerned. Therefore, the view taken in 1953 SCR 1144:[AIR 1953 SC 210] (supra) and 1954 SCR 738 (AIR 1954 SC 207) (supra) that there is two fold limitation on the power of the High Court to issue writs, etc. under Art.226, namely (i) the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction'. That is to say the writs issued by the Court cannot run beyond the territories subject to its jurisdiction, and (ii) the person or authority to whom the High Court is empowered to issue such writs must be 'within those territories” which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories, is the correct one.” 11. Therefore, the mere fact that the Union of India is also a party to the writ petition does not mean that this court would necessarily have territorial jurisdiction in terms of Article 226(1) of the Constitution to entertain the writ petition as such. Reference also will have to be made in this regard to the judgment of the Supreme Court in Alchemist Limited v. State Bank of Sikkim {AIR 2007 SC 1812}. After **W.P.(C).No.23376 of 2007** **:: 11 ::** referring to the judgment of the Constitution Bench in Khajoor singh v. Union of India {AIR 1961 SC 532} the Supreme Court observed that, at that point of time the cause of action was a concept totally irrelevant or alien for conferring jurisdiction under Article 226(1) of the Constitution of India. Article 226 was then amended by the Constitution 15[th] Amendment Act and this resulted in the introduction of Clause 1-A which was later renumbered as Clause II. Thus, even if a portion of the cause of action arose within the territorial jurisdiction of this court, this court would be entitled to entertain and dispose of the writ petition. The question is whether any part of the cause of action in this writ petition has arisen within the jurisdiction of this court. 12. Reference in this regard has been made by both sides to the judgment of the Supreme Court in Alchemist Limited v. State Bank of Sikkim {AIR 2007 SC 1812} and of the Full Bench of this court in Nakul Deo Singh v. Deputy Commandant {1999(3) KLT 629}, Prakash v. Food Corporation of India {2007(4) ILR Kerala 73}. Referring to the earlier **W.P.(C).No.23376 of 2007** **:: 12 ::** decisions on the point, in the last among the decisions, the Division Bench of this court held as follows: “It is therefore clear from the above-mentioned pronouncements of the Supreme Court that for the purpose of deciding whether facts averred by the petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential or integral part of the cause of action. True even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. But as held in Kusum Ingots' case, that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. 13. Keeping in mind the aforementioned principles, I shall consider whether any material or integral portion of the cause of action for the **W.P.(C).No.23376 of 2007** **:: 13 ::** writ petition has arisen within the jurisdiction of this court. 14. I have already noted above, that all the three meeting of the selection board held in May, 2006, September, 2006 and May, 2007, were held outside the territorial jurisdiction of this court. More importantly, the selection board was essentially assessing the service rendered by the petitioner either up to the period of May, 2006, when the first meeting was held or upto May, 2007 when the first review was held. The petitioner had not rendered any portion of the service upto May, 2007 at any station comprehended by the territorial jurisdiction of this court. It is, therefore, a case where the selection board was assessing the services of the petitioner rendered at places, which are indisputably outside the territorial jurisdiction of this court. Since what has been challenged in this writ petition is the proceedings of the selection board any portion of the cause of action can be said to have arisen within the jurisdiction of this court either if the petitioner had rendered any portion of the service which was assessed by the selection board, **W.P.(C).No.23376 of 2007** **:: 14 ::** at a station within the jurisdiction of this court or at least, the selection board had conducted their proceedings within the jurisdiction of this court. Both these facts are absent in the present case. The mere fact that the Government of India is also a party to the writ petition, would not be relevant insofar as the question as to whether any portion of the cause of action had arisen within the jurisdiction of this court is concerned. The law laid down by the Full Bench in Nakul Deo Singh v. Deputy Commandant {1999(3) KLT 629} and the Division Bench in Prakash v. Food Corporation of India {2007(4) KLT 895} answers the said contention of the petitioner. 15. For all these reasons, I am of the view that this court does not have the jurisdiction to entertain the instant writ petition, either on a construction of Article 226 (1) or 226(2) of the Constitution of India. No material or integral portion of cause of action pleaded in the writ petition has arisen within the territorial jurisdiction of this court. The official respondents, whose action has been impugned in the writ petition are not amenable to **W.P.(C).No.23376 of 2007** **:: 15 ::** the jurisdiction of this court, insofar as this writ petition is concerned, by virtue of Article 226(1) of the Constitution of India alone. 16. In circumstances where I have taken the view that this court lacks territorial jurisdiction to entertain and dispose of the writ petition, I refrain from going into the other contentions raised by the parties, on the validity of the proceedings of the selection board or the order on the non-statutory complaint preferred by the petitioner. I have not dealt with the other contentions raised by the petitioner. I am declining relief only on the ground of territorial jurisdiction. In the result, the writ petition is dismissed on the ground that this court lacks territorial jurisdiction to entertain and dispose of the instant writ petition. Sd/- **(V.GIRI) JUDGE** sk/ ## **//true copy//**