LT. COL. VIJAYNATH JHA versus UNION OF INDIA & ORS. on 18 May 2018

[2018] 4 S.C.R. 560

SUPREME COURT REPORTS

[2018] 4 S.C.R.

A

LT. COL. VIJAYNATH JHA

v.

UNION OF INDIA & ORS.

(Civil Appeal No. 2020 of 2013)

BMAY 18, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Armed Forces Tribunal Act, 2007 :

s. 3(o) – Commissioned Officer (appellant) in Indian Army –CInducted in an organization (DGQA) functioning under Ministry ofDefence – Refusal of permanent secondment to the appellant inDGQA – Refusal order challenged before Armed Forces Tribunal –Dismissed as not maintainable – On appeal, held: Enumerationsunder s. 3(o) indicate that they all relate to matters relating toconditions of service pertaining to the conditions of service ofDpersons subject to Army Act, Navy Act and Air Force Act – Impugnedorder before the Tribunal was by a different organization –Therefore, cannot be held to be service matter within the meaningof s. 3(o) – ss. 27 and 33 of Army Act are also not applicable in thepresent case – Army Act, 1950 – ss. 27 and 33 – Navy Act, 1957 –EAir Force Act, 1950.

Dismissing the appeal, the Court

HELD: 1. The Armed Forces Tribunal Act, 2007 has beenenacted to provide for the adjudication or trial by Armed ForcesTribunal of disputes and complaints with respect to commission,Fappointments, enrolment and conditions of service in respect ofpersons subject to the Army Act, 1950, the Navy Act, 1957 andthe Air Force Act, 1950. [Para 12] [566-A-B]

2. The definition of service matters is an inclusivedefinition. A look into the enumerations as contained in SectionG3(o) of 2007 Act indicates that they all relate to matters relatingto the conditions of the service of persons subject to the ArmyAct, 1950, the Navy Act, 1957 and the Air Force Act, 1950. Lastenumeration, i.e., (iv) of s. 3(o) is “any other matter whatsoever”,at first blush; it appears that the said enumeration is very wide H

which may cover all other residual categories. But, the phrase“any other matter whatsoever” is to take colour from the otherthree enumerations and the main provision of Section 3(o). Thepre-condition of a matter to be a service mater has to be relatingto the conditions of their service. Thus, for a matter to be treatedas a service matter, it must relate to the conditions of their service.[Para 14][567-C-E]

3. From the facts, it is clear that the appellant was given atenure of two years in Directorate General of Quality Assurance(DGQA) in accordance with the guidelines issued by the Ministryof Defence, Department of Defence Production. After completionof tenure of two years, the appellant returned back to the Army.On 06.06.2007, the appellant’s claim for permanent secondmentin the DGQA was considered by the Quality Assurance SelectionBoard (QASB), wherein he was not found fit for the permanentsecondment by the QASB, with regard to which a complaint wasfiled, which was rejected by the Ministry. DGQA is anOrganisation functioning under the Ministry of Defence,Department of Defence Production and the question of permanentsecondment of an Army Officer was considered by the SelectionBoard of DGQA. The decision not to grant permanentsecondment to the appellant in DGQA does not in any manneraffect the service conditions of the appellant as CommissionedOfficer. [Para 15][567-F-H; 568-A]

4. In the present case, the action, which was impugnedbefore the Armed Forces Tribunal was the refusal of permanentsecondment of the appellant in DGQA by QASB. For permanentsecondment of a Commission Officer, there were orders issuedby the Ministry of Defence, which regulated the permanentsecondment, i.e. Government Order dated 28.10.1978, asamended from time to time and the Government of India O.M.dated 22.12.1993. Non-selection of the appellant which wasimpugned in the application was by a different organisation, i.e.,by QASB of DGQA. Therefore, action impugned before theTribunal cannot be held to be service matter within the meaningof Section 3(o) of the Armed Forces Tribunal Act, 2007.[Paras 22, 23][573-C-E]

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

A5. In the present case, Section 27 has no application. Section27 of the Army Act, 1950 provides a remedy to aggrieved officersto submit a complaint to the Central Government, if he has beenwronged by a commanding officer or any superior officer. Presentis not a case where any action of commanding officer or anysuperior officer of appellant was complained or questioned.B[Para 25][574-B]

6. Section 33 of the Army Act, provides for “saving of rightsand privileges under other laws”. The said provision indicatesthat the provision saves the rights and privileges conferred onCpersons subject to Army Act, by any other law for the time beingin force.” Section 33 has no application in facts of the presentcase. Present is not a case where the appellant is claiming anyprivilege conferred on persons subject to Army Act or by anyother law in force. [Paras 26, 27][574-C, F]

DUnion of India and Others v. Colonel G.S. Grewal (2014)7 SCC 303 ; Mohammed Ansari v. Union of India andOthers (2017) 3 SCC 740 : [2017] 1 SCR 422 –referred to.

Case law reference

E(2014) 7 SCC 303 referred to[2017] 1 SCR 422 referred to Para 8

Para 8

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2020of 2013.F

From the Judgment and Order dated 23.08.2012/11.09.2012 bythe Armed Forces Tribunal, Regional Bench Lucknow at Lucknow inOA No. 104 of 2011/M.A. No. 72/2012.

Lt. Col. Vijaynath Jha (Appellant-in-person).

G

Sandeep Sethi, ASG, Ms. Alka Agrawal, M. K. Maroria, PrakashGautam, Advs for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. We have heard the appellantappearing in-person and Shri Sandeep Sethi, learned Additional SolicitorGeneral for India.

2. This appeal has been filed by the appellant questioning thejudgment and order dated 23.08.2012 passed by the Armed ForcesTribunal, Regional Bench, Lucknow by which O.A.No.104 of 2011 filedby the appellant has been rejected as not maintainable and returned tothe appellant with liberty to file the same before the concerned authority.

3. Brief facts of the case necessary to be noted for deciding theissues raised in the appeal are:

The appellant was commissioned in the Indian Army on 11.03.1989in the Engineering Discipline. The appellant was subsequently selectedand inducted in the Directorate General of Quality Assurance (DGQA)from 31.05.2004. On completion of two years the appellant wastransferred to the Directorate of Indigenization under DGEME. QualityAssurance Selection Board (QASB) was held at DGQA organisationfor selection of the officers of the rank of Lt. Col. and Major for permanentsecondment. The appellant was not found fit for permanent secondmentby the QASB. The appellant filed a statutory complaint seekingpermanent secondment in the DGQA. The complaint was submitted atthe time when the appellant was working in the Army. The complaintwas forwarded to the Ministry of Defence. Since, the complaint pertainedto DGQA organisation, the Government of India, Ministry of Defence,Department of Defence Production by order dated 17.12.2007 rejectedthe statutory complaint of the appellant. O.A. No.104 of 2011 was filedby the appellant before the Armed Forces Tribunal, Regional Bench,Lucknow praying for quashing the order dated 17.12.2007 and issuing adirection to the respondent to grant permanent secondment to the DGQAorganisation with all consequential benefits retrospectively.

4. A counter-affidavit was filed in O.A. by the respondent. Whenthe O.A. was taken for hearing by the Armed Forces Tribunal on23.08.2012 a preliminary objection was raised by the respondent thatthe relief claimed by the applicant in the O.A. is not maintainable in theArmed Forces Tribunal. The Armed Forces Tribunal heard the partieson the above preliminary objection and vide order dated 23.08.2012 heldthat O.A. is not maintainable. It is useful to extract paragraph 16 of thejudgment which is to the following effect:

A

B

C

D

E

F

G

H

A

A

B

C

D

E

F

G

H

A

“16. The applicant’s main grievance is that he was notconsidered for permanent seconded, DGQA organisation andwe find no breach in the Army Act and the Army Rules and itis a separate organisation with the guideline for induction,appointment and promotion and Service HQ has no role ingrant of second tenure of (sic) permanent secondment of anyofficer under the Army Act. The terms and condition of theservice officers in DGQA is not creation of the Army Act orthe Army Rules and the Armed Forces Tribunal is not the rightforum for adjudication of DGQA matters. Hence the OriginalApplication is not maintainable and is returned to the applicantwith the liberty to file the same before the concerned authority.”

B

C

5. A miscellaneous application was filed by the applicant beforethe Tribunal seeking leave to appeal to this Court which application wasrejected on 11.09.2012. This appeal has been filed challenging the orderdated 23.08.2012 and order dated 11.09.2012.

D

6. A counter-affidavit has been filed in this appeal by therespondent reiterating their objection that the relief which was claimedby the appellant in O.A. was not maintainable before the Armed ForcesTribunal.

E7. The appellant appearing in-person submits that in DGQAOfficers are drawn from Armed Forces on tenure posting and thereaftertheir cases are considered for permanent secondment as per the OfficeMemorandum dated 28.10.1978 and Office Memorandum dated22.12.1993. The DGQA is an organisation within the control of Ministryof Defence and is composed of persons subject to Army Act, 1950Fincluding civilian persons thus the Armed Forces Tribunal will have thejurisdiction to decide the matter relating to DGQA. Relying on Section3(o)(iv) of the Armed Forces Tribunal Act, 2007, the appellant submitsthat his case is squarely covered by the said provision. The appellantwho is subject to Army Act, 1950 being a commissioned officer of IndianGArmy can very well approach the Armed Forces Tribunal. Reliance onjudgment of Chandigarh Bench of Armed Forces Tribunal in the case ofBrig.A.K. Bhutani vs. Union of India decided on 19.04.2011 has beenplaced. The appellant has also relied on the provisions of Sections 27and 33 of the Army Act, 1950 to support his submission.

8. Shri Sandeep Sethi, learned Additional Solicitor General submitsthat the claim raised by the appellant before the Armed Forces Tribunalis not covered by the definition of the service matter as defined in Section3(o) of the Armed Forces Tribunal Act, 2007. He submits that denial ofpermanent secondment was made by DGQA Selection Board. No orderwas passed against the appellant under the Army Act or the Army Rulesagainst which the appellant could have made a complaint before theArmed Forces Tribunal. Learned counsel for the respondent has placedreliance on the judgment of this Court in Union of India and others vs.Colonel G.S. Grewal, 2014 (7) SCC 303 and on another judgment ofthis Court in Mohammed Ansari vs. Union of India and others, 2017(3) SCC 740. He submits that service matters with regard to whichArmed Forces Tribunal has jurisdiction are service matters of Armypersonnel which have been dealt under the Army Act, Army Rules andRegulations framed therein. The action which was impugned beforethe Tribunal by the appellant was not any action of the Army whichcould have been complained before the Armed Forces Tribunal. He hasfurther submitted that Armed Forces Tribunal has rightly rejected theO.A. of the appellant as not maintainable.

9. We have considered the submissions of the parties and perusedthe records.

10. The only question which needs to be answered is as to whetherthe Original Application filed by the appellant was maintainable beforethe Armed Forces Tribunal?

11. The main relief, which was asked by the appellant before theArmed Forces Tribunal was to quash and set aside the order dated17.12.2007 by which the complaint of the appellant was rejected byCentral Government. The appellant had prayed for a direction to therespondents to grant permanent secondment in the DGQA Organizationwith all the consequential benefits retrospectively. The Armed ForcesTribunal (AFT) has rejected the application of the appellant holding thatit has no jurisdiction to entertain the application. The Tribunal in Para 16of the judgment has held that there is no breach of Army Act and theArmy Rules and the Service HQ had no role in grant of second tenureof permanent secondment of any Army Officer in the DGQAOrganisation. Further, the terms and conditions of the Service Officersin DGQA is not creation of the Army Act or the Army Rules.

AB

C

D

E

FG

H

A12. The provisions of the Armed Forces Tribunal Act, 2007 haveto be looked into to find out as to whether the Tribunal has committedany error in refusing to entertain the application of the appellant. TheArmed Forces Tribunal Act, 2007 has been enacted to provide for theadjudication or trial by Armed Forces Tribunal of disputes and complaintswith respect to commission, appointments, enrolment and conditions ofBservice in respect of persons subject to the Army Act, 1950, the NavyAct, 1957 and the Air Force Act, 1950. Section 2 deals with theapplicability of the Act, which is to the following Act:- “2. Applicability of the Act : (1) The provisions of this Actshall apply to all persons subject to the Army Act, 1950, theCNavy Act, 1957 and the Air Force Act, 1950.

(2) This Act shall also apply to retired personnel subject tothe Army Act, 1950 or the Navy Act, 1957 or the Air ForceAct, 1950, including their dependants, heirs and successors, in so far as it relates to their service matters.”D13. Section 3 is a definition section. Section 3(o) defines “servicematters”, which is to the following effect:- “3(o)”service matters”, in relation to the persons subject tothe Army Act, 1950 (46 of 1950) the Navy Act, 1957 (62 ofE1957) and the Air Force Act, 1950 (45 of 1950) mean allmatters relating to the conditions of their service and shallinclude—

(i) .remuneration (including allowances), pension and otherretirement benefits; F

(ii) tenure, including commission, appointment, enrolment,probation, confirmation, seniority, training, promotion,reversion, premature retirement, superannuation, terminationof service and penal deductions;

(iii) summary disposal and trials where the punishment ofGdismissal is awarded;

(iv) any other matter, whatsoever, but shall not include mattersrelating to—

(i) orders issued under section 18 of the Army Act, 1950 (46of 1950) sub-section (1) of section 15 of the Navy Act, 1957

H

(62 of 1957) and section 18 of the Air Force Act, 1950; (45of 1950) and

(ii) transfers and postings including the change of place orunit on posting whether individually or as a part of unit,formation or ship in relation to the persons subject to theArmy Act, 1950 (46 of 1950) the Navy Act, 1957 (62 of 1957)and the Air Force Act, 1950 (45 of 1950);

(iii) leave of any kind;

(iv) summary court martial except where the punishment is ofdismissal or imprisonment for more than three months;”

14. The provision excludes certain matters. The present case isnot covered by excluded categories, hence that part of the provision isnot relevant for the present case. The definition of service matters is aninclusive definition. A look into the enumerations as contained in Section3(o) indicates that they all relate to matters relating to the conditions ofthe service of persons subject to the Army Act, 1950, the Navy Act,1957 and the Air Force Act, 1950. Last enumeration, i.e., (iv) is “anyother matter whatsoever”, at first blush; it appears that the saidenumeration is very wide which may cover all other residual categories.But, the phrase “any other matter whatsoever” is to take colour fromthe other three enumerations and the main provision of Section 3(o).The pre-condition of a matter to be a service mater has to berelating tothe conditions of their service. Thus, for a matter to be treated as aservice matter, it must relate to the conditions of their service.

15. From the facts as noted above, it is clear that the appellantwas given a tenure of two years in DGQA in accordance with theguidelines issued by the Ministry of Defence, Department of DefenceProduction, as noticed above. After completion of tenure of two years,the appellant returned back to the Army. On 06.06.2007, the appellant’sclaim for permanent secondment in the DGQA was considered by theQASB, wherein he was not found fit for the permanent secondment bythe QASB, with regard to which a complaint was filed, which was rejectedby the Ministry. DGQA is an Organisation functioning under the Ministryof Defence, Department of Defence Production and the question ofpermanent secondment of an Army Officer was considered by theSelection Board of DGQA. The decision not to grant permanentsecondment to the appellant in DGQA does not in any manner affect the A

B

C

D

E

F

G

H

Aservice conditions of the appellant as Commissioned Officer. The Tribunalhas placed reliance on a judgment of the Principal Bench of the ArmedForces Tribunal in T.A. No. 125 of 2010, Maj. General S.B. Akali Etc.Etc. Vs. Union of India & Ors. In the above case, the question ofselection of the applicant in Defence Research and DevelopmentOrganisation was under consideration. The objection was raised thatBthe AFT has no jurisdiction to entertain the claim. The Principal Benchof the Armed Forces Tribunal, speaking through Justice A.K. Mathur,Chairperson (as he then was), in Paragraphs 12, 13, 14 and 15 has held:- “12. We have bestowed our best of consideration and we areof the opinion that as per Section 2 read with Section 3(o) ofCthe Armed Forces Tribunal Act, 2007, this Tribunal has limitedjurisdiction to deal with the service conditions of the ArmyAct and Rules, but, the present case, which relates to non-selection of the petitioner by the DRDO for the rank of Lt.General and it is not supersession under the Army Act or Rules,Dit is under the DRDO Rules of the Office Memorandum dated23rd November, 1989. As such, this Tribunal cannot sit overthe selection by DRDO to decide the issue whether petitionerhas been correctly superseded or not, since the serviceconditions of the seconded officers under the DRDO isregulated by Office Memorandum dated 23rd November, 1979

E

and it is not under the Army Act and Rules. Therefore, thisTribunal will have no jurisdiction to decide this case ofsupersession of petitioner for promotion to the rank of Lt.General.

13. In this view of the matter, we uphold the preliminaryobjection of the learned Counsel for the respondent and directthe Principal Registrar to remit this case back to Hon’bleDelhi High Court to decide the matter in accordance withlaw.

F

14. On the same lines is the case of Brig PJS Rangar & BrigGAnand Solanki (TA No. 221 of 2010). In this case theincumbents were permanently seconded to Director Generalof Quality Assurance. It is also governed by OM dated 28thOctober, 1978, as amended from time to time. In this casealso the petitioners prayer is to quash the OM dated 18thHFebruary, 2008, letter dated 15th May, 2008 and empanelment order dated 16th June, 2008 and direct the respondents togive effect to the empanelment order dated 31st January, 2008and promote them to the rank of Major General in accordancewith their seniority in the panel.

15. The service conditions are governed by the OM dated28th October, 1978 and the non-selection of the petitionersare by Director General Quality Assurance of Ministry ofDefence. There is no breach of any service conditions underthe Army Act and Rules. The non-selection of the petitioner ison account of the service conditions as mentioned in OMdated 28th October, 1978, as amended from time to time.Therefore, the objection raised by the learned Counsel forthe respondent, in this case is also upheld and consequentlyit is held that this Tribunal has no jurisdiction to interfere inthis matter and direct the Principal Registrar to remit this caseback to Hon’ble Delhi High Court to decide the matter inaccordance with law.”

16. The above judgment has been referred to and relied by theTribunal.

17. In the case of Union of India & Ors. Vs. Colonel G.S.Grewal, (2014) 7 SCC 303, the same question relating lack ofjurisdiction of AFT came for consideration. The facts have been noticedin Paragraph 3 of the judgment, which are quoted as below:- “3. The respondent joined the Indian Army as a Major.Indubitably, in that capacity he was subject to the disciplineof the Army Act, 1950. It is a normal practice that thepersonnel belonging to the Armed Forces, namely, Army, AirForce or Naval Force, are seconded to the other offices underthe Ministry of Defence, which include Department of DefenceProduction, Department of Defence Research andDevelopment and Department of Ex-Servicemen Welfare. Weare concerned here with the Department of DefenceProduction, which has Director General of Quality Assurances(“DGQA”, for short) as well as Defence Public SectorUndertaking (DPSU). The respondent was seconded to DGQAon 6-11-2004 in the rank of Major. At that time, it wastemporary secondment.”

A

BC

D

E

F

G

H

A

A18. A policy decision was taken, which adversely affected therespondent’s claim for further promotion in DGQA. He challenged thepolicy decision and consequently the order. Before the Tribunal, thejudgment of Principal Bench in Maj. General S.B. Akali Etc. Etc.(supra) was relied on, which was brushed aside by the Tribunal. TheTribunal decided to entertain the application, however, observed that theBsame will not be treated as a precedent. The Union of India, aggrievedby the said order of the Tribunal has approached the Supreme Court.This Court considered the matter in the aforesaid light and set aside theorder of the AFT and remitted the matter. This Court held that it wasrequired to be examined as to whether the relief claimed was entirelyCwithin the domain of the DGQA or for that matter, the Ministry ofDefence or it can still be treated as Service Matter Under Section 3(o).Following was held in Para 26:-

“26. No doubt, it is open to Mr Bhati to refer to the statutoryprovisions in the AFT Act or even the Army Act in support ofhis submission. But many other documents of which the learnedcounsel is relying upon were not part of the record before theTribunal. Secondly, as already pointed out above, no suchaspects are considered either by the Chandigarh Bench inthe impugned judgment or by the Principal Bench in MajorGeneral S.B. Akali case1. We may point out that merelybecause the respondent is subject to the Army Act would notby itself be sufficient to conclude that the Tribunal has thejurisdiction to deal with any case brought before it by such aperson. It would depend upon the subject-matter which isbrought before the Tribunal and the Tribunal is also requiredto determine as to whether such a subject-matter falls withinthe definition of “service matters”, as contained in Section3(o) of the AFT Act. In Major General S.B. Akali case1, thePrincipal Bench primarily went by this consideration. Thesubject-matter was promotion to the rank of LieutenantGeneral and this promotion was governed by the Rulescontained in the Policy of DRDO and not under the ArmyAct. Therefore, in the instant case, it is required to be examinedas to whether the relief claimed is entirely within the domainof DGQA or for that matter, the Ministry of Defence or it canstill be treated as “service matter” under Section 3(o) of theAFT Act and two aspects are intertwined and inextricably D

E

F

G

H

mixed with each other. Such an exercise is to be taken on thebasis of documents produced by both the sides. That has notbeen done. For this reason, we deem it proper to remit thecase back to the Tribunal to decide the question of jurisdictionkeeping in view these parameters.”

19. Although in the above case, this court did not decide finally asto whether the claim of respondent G.S. Grewal in the said case couldbe entertained by AFT or not. The Court remitted the matter to consideras to whether the claim is entirely within the domain of the DGQA.Thus, the jurisdiction of AFT in a case where a person claims permanentsecondment in DGQA, the nature of relief and the action challengedhave to be looked into for answering the question. A subsequent judgmentof this Court in the case of Mohammed Ansari Vs. Union of India &Ors., (2017) 3 SCC 740, is also relevant in this context. In this case,the appellant was appointed as an Assistant Executive Engineer in BorderRoads Engineering Service (BRES). The appellant was not grantednon-functional financial upgradation for officers of Organised Group A.He made representation to the concerned authorities, which was turneddown. Thereafter, he filed Original Application No. 102 of 2012 beforethe Central Administrative Tribunal. The Tribunal decided the issue ofjurisdiction in favour of the appellant, which was opposed. The Tribunalheld that it has jurisdiction to entertain the claim of the appellant.Aggrieved by the said order of the Tribunal, Union of India filed a WritPetition for quashment of the order of the Tribunal. The High Courtframed the question as to whether a member of the GREF can beregarded as member of Armed Forces. The High Court after referringto Armed Forces Tribunal Act, 2007 and Central Civil Services (Control,Classification and Appeal) Rules, 1965 held that the Central AdministrativeTribunal had no jurisdiction and only remedy was to file an applicationunder Article 226. The appellant challenging the order of the High Courtcame up before this Court. In the above context, this Court also examinedthe question as to whether after coming into the force of the ArmedForces Tribunal Act, 2007, it shall be the Armed Forces Tribunal whichshall deal with the controversy or the High Court has jurisdiction UnderArticle 226 of the Constitution of India. The judgment of this Court inUnion of India & Ors. Vs. Colonel G.S. Grewal, (supra) wasextensively quoted by this Court and after quoting Paragraph 26 of thejudgment, following was stated in Para 29:- A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

“29. Thus, the Court in G.S. Grewal case clearly held thatmerely because the respondent is subjected to the 1950 Actwould not by itself be sufficient to conclude that the Tribunalhad jurisdiction to deal with any case brought before it bysuch a person. It would depend upon the subject-matter whichis brought before the Tribunal and the Tribunal is also requiredto determine as to whether such a subject-matter falls withinthe definition of “service matter” as contained in Section 3(o)of the 2007 Act.

20. This Court further laid down in Paragraphs 33 and 34:- “33. The situation insofar as jurisdiction of the Armed ForcesTribunal (AFT) to hear the appeals arising out of court martialverdicts qua GREF personnel, however, appears to stand ona different footing. It is because the provisions of Chapter VIi.e. offences, Chapter VII i.e. punishment, Chapter X i.e.“courts martial”, etc. apply with full force, subject to minorexceptions and modifications here and there, as applied toGREF. Therefore, the provisions of the 1950 Act dealing withvarious punishments inflicted by way of courts martial quaGREF personnel as applied can be agitated before AFT andAFT shall have jurisdiction to hear appeals arising out ofcourts martial verdicts. There can be no doubt that in respectof said matters AFT shall have jurisdiction. Denial ofjurisdiction to the said Tribunal would be contrary to the 1950Act and the provisions engrafted under the 2007 Act. Toelaborate, right to approach AFT by the personnel of GREFwho are tried by a court martial held under the very same Acthas to be recognised. At the same time, if the punishment isimposed on GREF personnel by way of departmentalproceedings held under the CCS (CCA) Rules, 1965 thenobviously the same cannot be agitated before AFT since thepenalty in such cases will not be one under the 1950 Act butwill be under the CCS (CCA) Rules, 1965. The distinction, asthe law exists in the present, has to be done.

34. From the aforesaid, the legal position that emerges is thatAFT shall have jurisdiction (i) to hear appeals arising out ofcourts martial verdicts qua GREF personnel. To this extentalone AFT shall have jurisdiction. At the same time, if the punishment is imposed on GREF personnel by way ofdepartmental proceedings held under the CCS (CCA) Rules,1965 the same cannot be agitated before AFT; and (ii) AFTshall have no jurisdiction to hear and decide grievances ofGREF personnel relating to their terms and conditions ofservice or alternatively put “service matters”.

21. This Court in the above case has clearly held that AFT canexercise jurisdiction if the action, which is complained flow from theArmy Act, 1950, the example of court martial verdict was given to whichthe personnel of GREF were subject. This Court further held that inevent, the personnel of GREF had been administratively dealt with in thedepartmental proceedings held under the CCS(CCA) Rules, the samecannot be agitated before the AFT.

22. Coming back to the facts of the present case, the action, whichis impugned before the AFT was the refusal of permanent secondmentof the appellant in DGQA by QASB. For permanent secondment of aCommission Officer, there were orders issued by the Ministry of Defence,which regulated the permanent secondment, i.e. Government Order dated28.10.1978, as amended from time to time and the Government of IndiaO.M. dated 22.12.1993. Non-selection of the appellant which wasimpugned in the application was by a different organisation, i.e., by QASBof DGQA.

23. We thus are of the view that action impugned before theTribunal cannot be held to be service matter within the meaning of Section3(o) of the Armed Forces Tribunal Act, 2007.

24. The appellant, who has appeared in-person has further reliedon two provisions namely, Section 27 and Section 33 of the Army Act,1950, which are extracted as below:-

“27. Remedy of aggrieved officers.— Any officer who deemshimself wronged by his commanding officer or any superiorofficer and who on due application made to his commandingofficer does not receive the redress to which he considershimself entitled, may complain to the Central Government insuch manner as may from time to time be specified by theproper authority.

33. Saving of rights and privileges under laws.— The rightsand privileges specified in the preceding sections of thisChapter shall be in addition to, and not in derogation of, any AB

C

D

E

F

G

H

Aother rights and privileges conferred on persons subject tothis Act or on members of the regular Army, Navy and AirForce generally by any other law for the time being in force.”

25. Section 27 provides a remedy to aggrieved officers to submita complaint to the Central Government, if he has been wronged by aBcommanding officer or any superior officer. Present is not a case whereany action of commanding officer or any superior officer of appellantwas complained or questioned. Thus Section 27 has no application.

26. Coming to Section 33 of the Act, which provides for “savingof rights and privileges under other laws”. The said provision indicatesCthat the provision saves the rights and privileges conferred on personssubject to Army Act, by any other law for the time being in force.” Fewexamples of such privileges are as under:- “(a) All Govt. pensions (including military persons) are immunefrom attachment in the execution of the decrees of civil courts;Ds. 11 of pensions Act 1871, proviso (g) to s. 60 of Code ofCivil Procedure 1908.

(b) Receipts for pay or allowances of NCOs, or Sepoys whenserving in such capacity need not be stamped; Indian StampAct, schedule 1.

E(c) All officers, JCOs, WOs and OR of the regular Army onduty or on the march as well as their authorized followers,families, horses, baggage and transport are exempt from alltolls except certain tolls for the transit of barges etc. alongcanals; s. 3 of Indian Tolls (Army and Air Force ) Act 1901.”

F27. The above provision has no application in facts of the presentcase. Present is not a case where the appellant is claiming any privilegeconferred on persons subject to Army Act or by any other law in force.Section 33, thus, has no application.

28. In view of the aforesaid discussion, we are of the view thatGthe Tribunal committed no error in holding that the application filed bythe appellant was not maintainable before the AFT. AFT has returnedthe application of the applicant to take proceeding before competentauthorities. In result, the appeal is dismissed.

HKalpana K. Tripathy

[2018] 4 S.C.R. 575

ADARSH COOPERATIVE HOUSING SOCIETY LTD.v.

UNION OF INDIA & ORS.

(Writ Petition (Civil) No. 129 Of 2018)

FEBRUARY 16, 2018

[DIPAK MISRA, CJI AND SANJAY KISHAN KAUL, J.]

Constitution of India – Art.32 – Petitioner sought directionsfor prohibiting the respondents Nos. 4 to 7 from releasing/screening/publishing feature film with direct or indirect references to thepetitioner society’s land/building/membership – Petitioner allegedthat film has projected the society in an unacceptable manner andthat is likely to have some impact on the litigations which are pendingapart from affecting the reputation of the members of the society –Held: A film with regard to a particular situation does not affect thetrial or the exercise of ‘error jurisdiction’ by the appellate court –The Courts of law decide the lis on the basis of the materials broughton record and not on the basis of imagination as is projected inlanguage of the theatre or a script on the celluloid – The doctrineof sub-judice may not be elevated to such an extent that some kindof reference or allusion to a member of a society would warrant thenegation of the right to freedom of speech and expression which isan extremely cherished right enshrined under the Constitution –The right to freedom of speech and expression is not absolute butany restriction imposed thereon has to be extremely narrow andwithin reasonable parameters – In instant case, the grant ofcertificate by the Central Board of Film Certification (CBFC), afterconsulting with the authorities of the Army, should dispel anyapprehension of the members or the society – Cinematograph Act,1952.

Dismissing the writ petition, the Court

HELD : 1. A film with regard to a particular situation doesnot affect the trial or the exercise of ‘error jurisdiction’ by theappellate court. The courts of law decide the lis on the basis ofthe materials brought on record and not on the basis of imaginationas is projected in the language of the theatre or a script on thecelluloid. [Para 8] [580-F-G]

A

B

C

D

E

F

G

H

A2. In human history, there have been many authors whoexpressed their thoughts in their own words, phrases,expressions and also created whimsical characters which noordinary man would conceive of. Further, a thought provokingfilm should never mean that it has to be didactic or in any waypuritanical, rather it can be expressive and provoking theBconscious or the sub- conscious thoughts of the viewer and ifthere has to be any limitation on it, such a limitation has to be asper the prescribed law. [Para 10] [581-D-E]

3. The doctrine of sub-judice may not be elevated to suchan extent that some kind of reference or allusion to a member ofCa society would warrant the negation of the right to freedom ofspeech and expression which is an extremely cherished rightenshrined under the Constitution. The moment the right tofreedom of speech and expression is atrophied, not only the rightbut also the person having the right gets into a semi coma.DHowever, the said right is not absolute but any restriction imposedthereon has to be extremely narrow and within reasonableparameters. In the case at hand, the grant of certificate by theCBFC, after consulting with the authorities of the Army, shoulddispel any apprehension of the members or the society. [Para 17][583-C-E]EViacom 18 Media Private Limited & Ors. v. Union ofIndia & Ors. 2018 (1) SCALE 382 – relied on.

R. K. Anand v. Registrar, Delhi High Court (2009) 8SCC 106 : [2009] 11 SCR 1026; State of MaharashtraFv. Rajendra Jawanmal Gandhi (1997) 8 SCC 386 :[1997] 4 Suppl. SCR 68; Mushtaq Moosa Tarain v.Government of India (2005) SCC Online Bom. 385;Nachiketa Walhekar v. Central Board of FilmCertification & Anr. (2018) 1 SCC 778; DevidasRamachandra Tuljapurkar v. State of Maharashtra &GOrs. (2015) 6 SCC 1 : [2015] 7 SCR 853 – referredto.

Kingsley International Pictures Corporation v. Regentsof the University of the State of New York 360 U.S. 684,688-89 (1959) – referred to.

H

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.129 of 2018.

C

Under Article 32 of the Constitution of India.

Sanjay R. Hegde, Sr. Adv., Ravindra Keshavrao Adsure,Ms. Himanshi Gupta, Sagar N. Pahune Patil, Pranjal Kishore, Advs.for the Petitioner.

DIPAK MISRA, CJI 1.The petitioner, a registered society, haspreferred this petition under Article 32 of the Constitution of India seekingappropriate directions for prohibiting the respondent Nos. 4 to 7 fromreleasing/screening/publishing feature film, namely, ‘Aiyaary’ with director indirect references to the petitioner society’s land/building/membership,for such an action is bound to affect the Right to Life under Articles 14and 21 of the Constitution. It is also prayed that the said respondentsshould be commanded to delete all those parts in the ensuing featurefilm which has direct or indirect references to the society in question.

DE

2. It is contended by Mr. Sanjay R. Hegde, learned senior counselfor the petitioner, that the film, which is going to be released, has projectedthe society in an unacceptable manner and that is likely to have someimpact on the litigations which are pending apart from affecting thereputation of the members of the society. A newspaper article has beenbrought on record to highlight how the script has been written and howthe dialogues have the innuendos to reflect on the image of the societyas well as its members. Learned senior counsel has highlighted that themembers of the society have built a reputation which is very dear totheir life and if the film is allowed to be released, the same shall destroythe established reputation and the posterity will remember the imageprojected in the film but not the real image which the members have.According to Mr. Hegde, the “reel reflection” will garner the mindset ofthe people rather than the “real life lived”.

FG

H

A3. It is not in dispute that the film ‘Aiyaary’ has already beengiven the requisite certificate by the Central Board of Film Certification(for short ‘CBFC’) under the Cinematograph Act, 1952 (for brevity,‘the Act’) and the said Board has also taken the suggestions from thecompetent authorities of the Army as a measure of caution. There canbe no shadow of doubt that the Censor Board can grant a certificate andBin the said decision making process, it can also consult the persons whocan assist it to arrive at the condign conclusion. We do not intend toname the number of authorities which have been referred to in thepleadings.

4. Learned counsel had laid emphasis on R.K. Anand v. Registrar,CDelhi High Court[1] and the paragraph that has been commended to usis extracted below:- “The impact of television and newspaper coverage on a person’sreputation by creating a widespread perception of guilt regardlessof any verdict in a court of law. During high publicity cases, theDmedia are often accused of provoking an atmosphere of publichysteria akin to a lynch mob which not only makes a fair trialimpossible but means that regardless of the result of the trial, inpublic perception the accused is already held guilty and would notbe able to live the rest of their life without intense public scrutiny.”

E5. A passage has also been referred to from the decision in Stateof Maharashtra v. Rajendra Jawanmal Gandhi[2] which states thus:-

“There is procedure established by law governing the conduct oftrial of a person accused of an offence. A trial by press, electronicmedia or public agitation is very antithesis of rule of law. It canFwell lead to miscarriage of justice.”

6. Our attention has been drawn to a few passages from thejudgment of the Bombay High Court in Mushtaq Moosa Tarain v.Government of India[3]. As Mr. Hegde has laid immense stress on theparagraphs from the said judgment, we think it appropriate to reproduceGthe same:- “56. The Censor Board has framed guidelines. These guidelinesare framed under section 5b(2) of the cinematography act. One 1 (2009) 8 SCC 1062 (1997) 8 SCC 386H3 (2005) SCC Online Bom. 385

of the guiding factors is that visuals or words “involving defamationof an Individual or Body of Individual or contempt of court are notpresented. These guidelines ensure that nothing should bepermitted which amounts to interfering with the administration ofjustice. It is not as if the Censor Board has to be satisfied thatvisuals or scenes have in fact interfered with or obstructed thecourse of justice or have adverse effect thereon. In other words,it is not as if the matter has to be decided by the Censor Board onthe touch stone of Law of Contempt. Similarly, “defamation” ascontemplated by the guidelines should not be construed ascommitting of tort of defamation as understood in law. Broadly,these guidelines are for the purposes of giving effect to the wellsettled principle that every right has a corresponding duty orobligation.

xxxxxxxxx

64. In the case of Hutchison, Ex parte McMAHON, reported in(1936) ALL ENGLAND LAW REPORTS ANNOTATED (VOL.2) 1514, the King’s Bench has observed thus:- “Proprietors of cinemas and distributors of films must realise that,if they want to produce these sensational films, they must takecare in describing them not to use any language likely to bringabout any derangement in the carriage of justice.”

65. Grant of injunction or restraint order is not a gagging writ inthe facts of this case. The Petitioner has made out a strong prima-facie case inasmuch as fair trial, which is part of Rule of Law andAdministration of Justice, is an aspect which must prevail overindividual’s right of free speech and expression. People’s right toknow cannot be stretched to such an extent as would makemockery of Rule of Law. Petitioner’s right to fair and impartialtrial must outweigh all such previleges and expectations. Thebalance of convenience is definitely in favour of an injunctioninasmuch as the restraint against exhibition is for limited durationand the Petitioner’s right as above as well as public interest is infavour of such restraint. The Respondents have a commercialand business interest which is secondary. The loss to thePetitioner’s dignity and reputation is enormous. It would beirreparable as the viewers may form an opinion about his guilt.

A

B

C

D

E

F

G

H

A

A

B

C

D

E

F

G

H

A

A66. Before we conclude, we cannot but observe that this trial isone of those important trials even in terms of history and in termsof reconciliation of people. If the people have to have a belief intruth and justice as abiding values having a primacy over forceand violence, it is just and necessary that justice must not merelybe done but must also appear to have been done. If a societyBwants to do justice and thereby have peace and stability, then thestream of justice has got to be maintained clean to the extentpossible. It is equally essential that the dignity of any individual,even though he may be an accused, has to be maintained as faras it could be. Looking at it from this point of view as well, weCcannot but hold that the release of the film will have a prejudicialeffect on fair administration of justice as well as on the image ofthe accused. We, therefore, hold that the Petitioner has made outa case for the injunction that he has sought on the ground that therelease of the film would constitute contempt of court and hisdefamation.”

D

7. Relying on the said judgment, it is contended by Mr. Hegde thatas the matter is sub-judice, the release of the movie is likely to affect thestream of justice and order of stay of the release of the movie is calledfor. With all the humility at his command, Mr. Hegde has relied upon theEdecision of the Bombay High Court which we have referred tohereinabove. We do not intend to comment on the said decision of theBombay High Court because we are not aware whether the lis travelledto this Court or not and in any case, the principle stated therein cannotalways be a guiding factor. Suffice it to say, the said case has to rest onits own facts.F

8. As it seems to us, a film with regard to a particular situationdoes not affect the trial or the exercise of ‘error jurisdiction’ by theappellate court. The courts of law decide the lis on the basis of thematerials brought on record and not on the basis of imagination as isprojected in the language of the theatre or a script on the celluloid. InGthis regard, we may reproduce a paragraph from the order passed inViacom 18 Media Private Limited & Ors. v. Union of India & Ors.[4]which deals with the release of the film, namely, ‘Padmaavat’. It readsas follows:- 4 2018 (1) SCALE 382H

ADARSH COOPERATIVE HOUSING SOCIETY LTD. v.UNION OF INDIA & ORS. [DIPAK MISRA, CJI]

“It has to be borne in mind, expression of an idea by any onethrough the medium of cinema which is a public medium has itsown status under the Constitution and the Statute. There is aCensor Board under the Act which allows grant of certificate forscreening of the movies. As we scan the language of the Act andthe guidelines framed thereunder it prohibits use and presentationof visuals or words contemptuous of racial, religious or othergroups. Be that as it may. As advised at present once theCertificate has been issued, there is prima facie a presumptionthat the concerned authority has taken into account all the guidelinesincluding public order.”

9. In Nachiketa Walhekar v. Central Board of FilmCertification & Anr.[5], this Court stated that a film or a drama or a novelor a book is a creation of art and that an artist has his own freedom toexpress himself in a manner which is not prohibited in law. The Courtalso stated that prohibitions should not by implication crucify the rightsof expressive minds.

10. The Court noted that in human history, there have been manyauthors who expressed their thoughts in their own words, phrases,expressions and also created whimsical characters which no ordinaryman would conceive of. Further, the Court stated that a thought provokingfilm should never mean that it has to be didactic or in any way puritanical, rather it can be expressive and provoking the conscious or the sub-conscious thoughts of the viewer and if there has to be any limitation onit, such a limitation has to be as per the prescribed law.

11. Elaborating the same, we may add that there can bemultitudinous modes, manners and methods to express a concept. Onemay choose the mode of silence to be visually eloquent and another mayuse the method of semi-melodramatic approach that will have impact. Itis the individual thought and approach which cannot be curbed.

12. Mr. Hegde, learned senior counsel, has also suggested thatthough the freedom of speech and expression should not be curtailed,yet this Court, on certain occasions, has protected the image and reputationof the individuals by giving priority to the image of the person in society.

13. In this regard, he has drawn inspiration from DevidasRamachandra Tuljapurkar v. State of Maharashtra & Ors.[6]. It is 5(2018) 1 SCC 7786 (2015) 6 SCC 1

AB

C

D

E

F

G

H

Anecessary to clarify here that in the said case, the question was withregard to poetic license wherein the Court observed that as far as thewords “poetic license” are concerned, it can never remotely mean alicense as understood in the language of law as there is no authoritywhich gives a license to a poet; for the words of the poet come from therealm of literature. Further elaborating, the Court stated that the poetBassumes his own freedom which is allowed to him by the fundamentalconcept of poetry and he is free to depart from the reality; hide ideasbeyond myths which can be absolutely unrealistic or put serious ideas insatires, ifferisms, notorious repartees; take aid of analogies, metaphors,similes in his own style, compare life with sandwiches that is consumedCeveryday or convey life is like peeling of an onion, or society is like astew define ideas that can balloon into the sky never to come down andcause violence to logic at his own fancy.

14. In this backdrop, the Court opined that a ‘poetic license’ canhave individual features, deviate from norms, or other collectiveDcharacteristics or it may have a linguistic freedom wider than what asyntax sentence would encompass. We may note with profit that thecontroversy travelled to this Court as the trial court had framed chargesunder Section 292 IPC against the appellants and the High Court haddeclined to interfere. This Court observed that the language employedin the poem “I met Gandhi” was prima facie obscene because of theElanguage employed relating to Mahatma Gandhi, the father of the Nation.Though the Court quoted some stanzas of the poem, yet it thought itwise not to reproduce the said stanzas in entirety because of the wordsused. The Court did not adjudicate upon the entire controversy as theauthor of the poem had not challenged the order. The concept of obscenityFwas judged in the background of “contemporary community standardstest” and the Court ruled that when the name of Mahatma Gandhi isalluded or used as a symbol and obscene words are used, the concept of“degree test” in addition to contemporary community standards test isinvokable. The Court further elaborated by stating that the “contemporary community standards test” becomes applicable with more vigour, in aGgreater degree and in an accentuated manner. The Court was of theview that what can otherwise pass the contemporary communitystandards test would not be able to do so if the name of Mahatma Gandhiis used as a symbol or allusion or surrealistic voice to put words or toshow him doing such acts which are obscene.H

15. While so stating, the Court concluded by leaving it to the poetto put his defense at the trial explaining the manner and the context inwhich he has used the words. In this context, the Court further opinedthat the view of the High Court pertaining to the framing of chargeunder Section 292 IPC cannot be said to be flawed.

16. In our considered opinion, the reliance placed on the above-mentioned judgment by Mr. Hegde, learned senior counsel, does notrender any assistance. The law laid down in the said case rests on thefacts depicted therein.

17. At this juncture, we may also state that the doctrine of sub-judice may not be elevated to such an extent that some kind of referenceor allusion to a member of a society would warrant the negation of theright to freedom of speech and expression which is an extremely cherishedright enshrined under the Constitution. The moment the right to freedomof speech and expression is atrophied, not only the right but also theperson having the right gets into a semi coma. We may hasten to addthat the said right is not absolute but any restriction imposed thereon hasto be extremely narrow and within reasonable parameters. In the caseat hand, we are obligated to think that the grant of certificate by theCBFC, after consulting with the authorities of the Army, should dispelany apprehension of the members or the society.

18. In this context, we may appositely reflect on an eloquentpassage from Kingsley International Pictures Corporation v. Regentsof the University of the State of New York[7] wherein Potter Stewartstated:- “It is contended that the State’s action was justified because themotion picture attractively portrays a relationship which is contraryto the moral standards, the religious precepts, and the legal codeof its citizenry. This argument misconceives what it is that theConstitution protects. Its guarantee is not confined to theexpression of ideas that are conventional or shared by a majority.It protects advocacy of the opinion that adultery may sometimesbe proper, no less than advocacy of socialism or the single tax.And in the realm of ideas it protects expression which is eloquentno less than that which is unconvincing.”

A

B

CD

E

FG

H

A19. The nature of the present matter compels us to recapitulatethat the human history is replete with struggles to get freedom, be itphysical or mental or spiritual. The creativity of a person impels him notto be tied down or chained to the established ideals or get enslaved tothe past virtues and choose to walk on the trodden path. He aspires torejoice with the new ideas and exerts himself to achieve the completeBfruition. That is the determination for moving from being to becoming,from existence to belonging and from ordinary assumption to sublimeconception. The creative intelligence kicks his thinking process to livewithout a fixed target but toying with many a target.

20. We would be failing in our duty if we do not note the last plankCof submission of Mr. Hegde. He would suggest that this Court maydirect the producer and director of the film to add a disclaimer so that nomember of the society would ultimately be affected by the film. Theaforesaid submission on a first blush may seem quite attractive but on aslightly further scrutiny, if we allow ourselves to say so, has to melt into

Doblivion. Whether there is the necessity of “disclaimer” or not has to bedecided by the Censor Board which is the statutory authority that grantsthe certificate. In fact, when a disclaimer is sought to be added, theprinciple of natural justice is also attracted. To elaborate, the produceror director is to be afforded an opportunity of hearing. The Court shouldnot add any disclaimer for the asking. Addition of a disclaimer is a differentEconcept altogether. It is within the domain of the authority to grantcertificate and to ask the director to add a disclaimer in the beginning ofthe movie to avoid any kind of infraction of guidelines. Though thesuggestion is made in right earnest by Mr. Sanjay Hegde, yet we areimpelled not to accept the same.F21. Consequently, the writ petition, sans merit, stands dismissed.

Ankit Gyan

Writ Petition dismissed.

G

H