Disposed

Maj.M.G.C. Nair (Retd) v. Union of India

Kerala HC15 Sept 2020WP(C)/10393/2020

Case brief

AI extract

What is this about?

Petitioners challenged the incapacity of the Armed Forces Tribunal to function due to vacancies. The Court disposed of the writ petitions by recording a reply from the Respondents that matters would be heard via video conferencing due to Supreme Court litigation and the pandemic. The Court directed respondents to follow the circular without deviation.

What did the court decide?

These Writ Petitions are disposed of; consequential direction to respondents to ensure the video conferencing arrangements as per the statement filed by the Assistant Solicitor General are followed wi

Maj.M.G.C. Nair (Retd) Vs Union of India — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942

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WP(C).No.10393 OF 2020(Y)

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PETITIONER:

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MAJ.M.G.C. NAIR (RETD) AGED 83 YEARS SON OF N. GOVINDAN NAIR, 129, BMRA, BALAKRISHNA MENON ROAD, EDAPALLY, KOCHI 682 023.

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BY ADVS.

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SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR

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RESPONDENT:

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UNION OF INDIA REPRESENTED BY SECRETARY TO THE MINISTRY OF DEFENCE, 104, SOUTH BLOCK, NEW DELHI 110 001.

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R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2020, ALONG WITH WP(C).12476/2020(H), WP(C).14696/2020(J), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC 10393/20

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942

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WP(C).No.12476 OF 2020(H)

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PETITIONER:

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P.PADMAKUMAR, AGED 65 YEARS (EX HAV 14317230Y), S/O. (LATE) PARAMESWARAN PILLAI, SAI KRIPA, KARTHIKAPPALLY P.O., ALAPPUZHA, KERALA-695 016.

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BY ADVS. SRI.B.HARISH KUMAR SMT.SMRUTHI SASIDHARAN

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RESPONDENTS:

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1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT (DEFENCE), MINISTRY OF DEFENCE, NEW DELHI-110011.

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2 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT (LAW), MINISTRY OF LAW AND JUSTICES, NEW DELHI-110 001.

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3 ARMED FORCES TRIBUNAL, PRINCIPAL BENCH, NEW DELHI, REPRESENTED BY REGISTRAR.

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4 ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI REPRESENTED BY ITS REGISTRAR, FORT KOCHI, KOCHI, KERALA-682 004.

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R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2020, ALONG WITH WP(C).10393/2020(Y), WP(C).14696/2020(J), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC 10393/20

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942

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WP(C).No.14696 OF 2020(J)

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PETITIONER:

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EX.NAIK RAJEEVAN I AGED 45 YEARS S/O.P.V.KANNAN, KADAMKUNNE, P.O.NHEKLY, PAYYANNUR, KANNUR-670307.

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BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA

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RESPONDENTS:

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1 UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF DEFENCE, RAJPATH, E.BLOCK, CENTRAL SECRETARIAT, NEW DELHI-110001.

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2 THE CHIEF OF ARMY STAFF, ARMY HEAD QUARTERS, SENA BHAVAN, NEW DELHI-110011.

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3 THE GENERAL OFFICER COMMANDING IN CHIEF, TERRITORIAL ARMY GROUP HEADQUARTERS, SOUTHERN COMMAND, PUNE-411001.

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4 THE COMMANDING OFFICER, MECHANIZED INFANTRY REGIMENTAL CENTRE ROAD, AHMEDNAGR, MAHARASHTRA-414001.

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R1-4 BY SMT.O.M.SHALINA, CGC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.09.2020, ALONG WITH WP(C).10393/2020(Y), WP(C).12476/2020(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 10393/20

JUDGMENT

I am hearing all these Writ Petitions

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together since the factual factors presented

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therein and the prayers sought are analogous.

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2. The petitioners in these cases are

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stated to be litigants before the Armed

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Forces Tribunal, Regional Bench, Kochi (hereinafter referred to as 'the Tribunal'

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for short). Their allegation is that the Tribunal is now incapacitated from functioning on account of the lack of adequate number of members appointed to it; and thus pray that either this Court direct

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the Union of India to appoint sufficient

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number of members or in the alternative, that

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their respective cases be directed to be

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taken up and disposed of appropriately by

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making alternate arrangements.

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3. When these matters were pending, the

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learned Assistant Solicitor General was

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WPC 10393/20

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directed to complete pleadings on behalf of the Union of India and a statement, dated 11.09.2020, has been now filed wherein, the

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following have been stated:

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1. It is humbly submitted that this statement is submitted based on the instructions received from Principal Registrar, AFT, Principal bench, AFT, R.K. Puram, New Delhi-10066. This statement is being filed without prejudice to the right of the respondents to file a detailed counter affidavit in the matter. This statement is filed based on preliminary facts of the case only.

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It is humbly submitted that the Ministry has been making all efforts to fill the vacant posts of Members in AFT. However, delay has been occurred due to various litigations going on in the Hon'ble Supreme Court. The Hon'ble Court is presently seized of the matter regarding vacant posts of members in various Tribunals including AFT.

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It is humbly submitted that due to Covid-19 situation, at present, it is decided that hearing of cases pertaining to the Regional benches of the AFT will be conducted through Video Conferencing. A circular to that effect is also issued. A true copy of the Circular No.AFT/RBK/JUD/ECourts/1/2020 dated 28-08-2020 is produced herewith as Annexure R1(a).

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It is further submitted that part heard matters/already admitted matters/old matters involving urgency can be heard through video conferencing, subject to the SoP, on providing the soft copies of the soft

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WPC 10393/20

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copies of the original applications and miscellaneous applications, as mentioned in the above said circular. Similarly Miscellaneous Applications under Section 31 of the AFT Act, 2007 can also be heard through video conferencing on providing soft copies of the original applications and miscellaneous applications.

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Therefore, it is humbly submitted that this writ petition is not maintainable, lacks merit and substances. This Hon'ble Court therefore may be pleased to dismiss the case with cost in the preliminary hearing itself according to circumstances and facts of the case. The petitioner can avail alternate remedy to address the grievance that is agitated by him.

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6. It is humbly prayed that for the reasons stated above this Hon'ble Court may be pleased to dismiss the Writ petition with cost.

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4. Today, the learned Assistant

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Solicitor General, Sri.P.Vijayakumar,

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submitted that since all part-heard matters,

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matters which are already admitted as also

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the old ones which involve urgency, can be heard through videoconferencing in the manner as has been mentioned in the aforementioned

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statement, none of the grievances of the petitioners are now relevant; adding that the

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WPC 10393/20

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issues relating to the appointment of members to various Armed Forces are still pending before the Hon'ble Supreme Court. He,

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therefore, prayed that this Writ Petition be dismissed without any further orders.

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5. In response, Smt.Tulasi K. Raj, learned counsel for the petitioner in WP(C)No.14696/2020, submitted that though the

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statement filed by the learned Assistant Solicitor General says that 'part-heard

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matters, already admitted matters and the old

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matters involving urgency' can be heard through videoconferencing, the applicable Standard Operating Procedure (SOP), namely Annexure R1 produced along with, provides that only applications already admitted and awaiting first listing will be taken up. She submits that her client's case has been awaiting final decision by the Tribunal and therefore, that going by the SOP, it appears

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WPC 10393/20

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that it may not be considered.

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6. In response, Smt.O.M.Shalina, learned

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Central Government Counsel, appearing for Union of India in this case, submitted that the apprehensions of Smt.Thulasi K. Raj is not accurate and that, as stated in the statement filed by the learned Assistant Solicitor General, every matter - including part-heard, admitted and old matters - can be

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taken up, subject to the procedure as is provided in the SOP.

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7. Sri.P.B.Sahasranaman, learned counsel

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appearing for the petitioner in

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WP(C)No.10393/2020, submitted that his client is satisfied with the statement filed by the learned Assistant Solicitor General; but prays that the respondents be directed to act specifically in terms with the same and to dispose of the matters at the earliest.

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8. When I consider the afore

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WPC 10393/20

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submissions, it is without doubt that the respondents have now made arrangements for disposal of all matters - be that pending, admitted or old matters involving urgency - through videoconferencing on the dates as are mentioned in the afore extracted statement. I am, therefore, of the certain view that it will be sufficient that this Court record the statement filed by the learned Assistant Solicitor General and to dispose of these Writ Petitions on the terms of the same, so as to enable all cases to be taken up and disposed of by the Tribunal appropriately without any further delay.

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In the result, these Writ Petitions are disposed of, recording the averments in the statement filed by the learned Assistant Solicitor General dated 11.09.2020; with a

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consequential direction to the respondents to ensure that the same is followed without any

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WPC 10393/20

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deviation, so as to lead all matters as are requested to be disposed of, without any

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avoidable delay.

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Sd/-

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DEVAN RAMACHANDRAN

JUDGE

WPC 10393/20

APPENDIX OF WP(C) 10393/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOSTAT COPY OF O.A. NO. 275 OF 2019 DATED 09.07.2019 ALONG WITH ALL THE RECORDS PRODUCED PENDING BEFORE THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, KOCHI DATED 9.7.2019.

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RESPONDENTS' EXHIBITS

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ANNEXURE R1(A) A CIRCULAR TO THAT EFFECT IS ALSO ISSUED. A TRUE COPY OF THE CIRCULAR NO.AFT/RBK/JUD/E-COURTS/I/2020 DATED 28.08.2020

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WPC 10393/20

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APPENDIX OF WP(C) 12476/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE DISCHARGE SUMMARY DATED 04.03.2020

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WPC 10393/20

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APPENDIX OF WP(C) 14696/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER DATED 15.3.2013 IN OA NO.19/2010. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 25.6.2014 IN O.P.(AFT) NO.3 OF 2014. EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.19867/2014 DATED 7.1.2019. EXHIBIT P4 TRUE COPY OF MA NO.184/2019 FILED ON 4.4.2019.

Maj.M.G.C. Nair (Retd) v. Union of India

Case brief

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Maj.M.G.C. Nair (Retd) v. Union of India

Case brief

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