BALKRISHNA RAMversusUNION OF INDIA AND ANR.

                         [2020] 2 S.C.R. 581                            581


                       BALKRISHNA RAM                                   A
                                 v.
                  UNION OF INDIA AND ANR.
                   (Civil Appeal No. 131 of 2020)
                        JANUARY 09, 2020                                B
      [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
      Armed Forces Tribunal Act, 2007:
      ss. 14(1) and 34 – Transfer of pending cases to Armed forces
Tribunal – Whether an appeal against the order of Single Judge of       C
a High Court deciding a case related to armed forces personnel,
pending before High Court, can be transferred to the Armed Forces
Tribunal – Held: As per s. 14(1), Armed Forces Tribunal can exercise
powers of all the Courts except the Supreme Court or High Court
exercising jurisdiction under Arts. 226 or 227 – Judicial review is
                                                                        D
basic structure – Power of judicial review vested with the High
Court cannot be taken away – Power of Judicial review vests with
the High Court even with regard to the orders passed by the Tribunal
– High Court being a constitutional court, its order cannot be
challenged before any court other than Supreme Court – Therefore
intra-court appeal pending before Division Bench of High Court          E
need not be transferred u/s. 34.
      Jurisdiction:
       Writ jurisdiction of High Court – Scope of – Held: Writ
Courts normally refrain from exercising their extra-ordinary power,
if alternative efficacious remedy is available – This rule is rule of   F
prudence and not rule of law – Existence of alternative remedy
does not oust the jurisdiction of High Court.
      Jurisdiction of Armed Forces Tribunal – Held: Transfer of
proceedings on the original side including cases in exercise of writ
jurisdiction, does not mean that the Tribunal can exercise all the      G
powers of the High Court.
      Service Law:
     Discharge from service – Challenged – Plea that even if the
candidate could not clear the aptitude test, he should have been
                                                                        H
                              581
582            SUPREME COURT REPORTS                      [2020] 2 S.C.R.


A     considered for appointment in some other post – Held: The candidate
      was considered for appointment to two categories, but could not
      meet the height criteria in either of the posts – The candidate was
      not fit for appointment.
            Dismissing the appeal, the Court
B           HELD : 1.1 Section 14(1) of the Armed Forces Tribunal
      Act, 2007 clearly provides that the Armed Forces Tribunal (AFT)
      will exercise powers of all courts except the Supreme Court or
      High Court exercising jurisdiction under Article 226 and 227 of
      the Constitution of India. Section 34 is very carefully worded. It
C     states that ‘every suit’, or ‘other proceedings’ pending before
      any court including a High Court immediately before the
      establishment of the Tribunal shall stand transferred on that day
      to the Tribunal. The Legislature has clearly not vested the AFT
      with the power and jurisdiction of the High Court to be exercised
      under Article 226 of the Constitution. There can be no manner
D     of doubt that the High Court can exercise its writ jurisdiction
      even in respect of orders passed by the AFT. True it is, that
      since an appeal lies to the Supreme Court against an order of the
      AFT, the High Court may not exercise their extraordinary writ
      jurisdiction because there is an efficacious alternative remedy
E     available but that does not mean that the jurisdiction of the High
      Court is taken away. In a given circumstance, the High Court
      may and can exercise its extraordinary writ jurisdiction even
      against the orders of AFT. [Para 10][587-F-G; 588-A-B]
            1.2 Judicial review is a part of the basic structure of the
F     Constitution and the power of judicial review vested in the High
      Courts and the Supreme Court cannot be taken away. The power
      of judicial review vests with the High Court even with regard to
      orders passed by the AFT and this power is part of the basic
      structure of the Constitution. [Para 11][588-C; 589-E]

G            1.3 The principle that the High Court should not exercise
      its extraordinary writ jurisdiction when an efficacious alternative
      remedy is available, is a rule of prudence and not a rule of law.
      The writ courts normally refrain from exercising their
      extraordinary power if the petitioner has an alternative efficacious

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     BALKRISHNA RAM v. UNION OF INDIA AND ANR.                          583


remedy. The existence of such remedy however does not mean              A
that the jurisdiction of the High Court is ousted. At the same
time, it is a well settled principle that such jurisdiction should
not be exercised when there is an alternative remedy available.
The rule of alternative remedy is a rule of discretion and not a
rule of jurisdiction. Merely because the Court may not exercise
                                                                        B
its discretion, is not a ground to hold that it has no jurisdiction.
There may be cases where the High Court would be justified in
exercising its writ jurisdiction because of some glaring illegality
committed by the AFT. One must also remember that the
alternative remedy must be efficacious and in case of a Non-
Commissioned Officer (NCO), or a Junior Commissioned Officer            C
(JCO); to expect such a person to approach the Supreme Court
in every case may not be justified. It is extremely difficult and
beyond the monetary reach of an ordinary litigant to approach
the Supreme Court. Therefore, it will be for the High Court to
decide in the peculiar facts and circumstances of each case
                                                                        D
whether it should exercise its extraordinary writ jurisdiction or
not. There cannot be a blanket ban on the exercise of such
jurisdiction because that would effectively mean that the writ court
is denuded of its jurisdiction to entertain such writ petitions.
[Para 14][593-G-H; 594-A-D]
      1.4 It is true that proceedings on the original side even in      E
exercise of writ jurisdiction are to be transferred to the Tribunal
for decision by the AFT because the original jurisdiction now
vests with the AFT. This however, does not mean that the AFT
can exercise all the powers of the High Court. [Para 15][594-F]
       1.5 The contention of the appellant, if accepted, would strike   F
at the very root of judicial independence and make the High Court
subordinate to the AFT. This can never be the intention of the
Legislature. The High Court is a Constitutional Court constituted
under Article 214 of the Constitution and are courts of record
within the meaning of Article 215. It is obvious that the order of      G
the High Court cannot be challenged before any other forum
except the Supreme Court. The provision of intra-court appeal
whether by way of Letters Patents or special enactment is a
system that provides for correction of judgments within the High

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584            SUPREME COURT REPORTS                      [2020] 2 S.C.R.


A     Courts where a judgment rendered by a Single Judge may be
      subject to challenge before a Division Bench. This appeal to the
      Division Bench does not lie in all cases and must be provided for
      either under the Letters Patent or any other special enactment.
      Even where such appeal lies, the appeal is heard by two or more
      judges of the High Court. The Court cannot envisage a situation
B
      where an appeal against the order of a sitting Judge of the High
      Court is heard by a Tribunal comprising of one retired judge and
      one retired Armed Forces official. Therefore, an intra court appeal
      from the judgment of a single judge of the High Court to a Division
      Bench pending in the High Court is not required to be transferred
C     under Section 34 of the Act. [Para 17][595-D-H]
            L Chandra Kumar v. Union of India & Ors. (1997) 3
            SCC 261 : [1997] 2 SCR 1186 ; Rojer Mathew v. South
            Indian Bank Ltd. & Ors. 2019 (15) SCALE 615
            – followed.
D           Union of India and Others v. Major General Shri Kant
            Sharma and Another (2015) 6 SCC 773 : [2015] 4
            SCR 676 – held inapplicable.
            Union of India v. T.R. Varma AIR 1957 SC 882 : [1958]
            SCR 499 – referred to.
E
            2. The appellant could not clear the aptitude test. It has
      been urged that even if he could not clear the aptitude test, he
      should have been considered for appointment in some other post
      before being discharged from service. It is also urged that in the
      order of discharge it is not indicated that the case of the appellant
F     was considered for such alternative service. It is not necessary
      to indicate in the order of discharge whether such consideration
      took place or not. From the records of the case, it is found that
      before discharge, the name of the appellant was considered for
      two categories but the appellant could not meet the height criteria
G     for appointment to either of the posts. Thus, this clearly shows
      that his case was considered as per the extant policy but he was
      not fit for appointment. In this view of the matter, there is no
      merit in the appeal. [Paras 18 and 19][596-A-C]


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        BALKRISHNA RAM v. UNION OF INDIA AND ANR.                                  585


                           Case Law Reference                                      A
[2015] 4 SCR 676                     held inapplicable          Para 9
[1997] 2 SCR 1186                    followed                   Para 11
[1958] SCR 499                       referred to                Para 14
2019 (15) SCALE 615                  followed                   Para 16            B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 131 of
2020.
      From the Judgment and Order dated 20.12.2016 of the High Court
of Judicature at Allahabad in Special Appeal No. 740 of 2008.
                                                                                   C
      Ms. Preetika Dwivedi, Ms. Sukriti Bhatnagar, Advs. for the
Appellant.
       Ms. Vimla Sinha, Sanjay Mohan, Mukesh Kumar Maroria, Advs.
for the Respondents.
        The Judgment of the Court was delivered by                                 D

        DEEPAK GUPTA, J.
        1. Leave granted.
       2. One of the issues raised in this appeal is whether an appeal
against an order of a single judge of a High Court deciding a case related         E
to an Armed Forces personnel pending before the High Court is required
to be transferred to the Armed Forces Tribunal or should be heard by
the High Court.
       3. The Armed Forces Tribunal (AFT for short) was constituted
under the Armed Forces Tribunal Act, 2007 (hereinafter referred to as              F
the Act), enacted with the purpose of constituting an AFT to adjudicate
disputes and complaints of personnel belonging to the Armed Forces.
Chapter III of the Act, deals with the jurisdiction, power and authority of
the Tribunal. Section 14(1) of the Act which is relevant reads as follows:-
        “14. Jurisdiction, powers and authority in service matters.—               G
        (1) Save as otherwise expressly provided in this Act, the Tribunal
        shall exercise, on and from the appointed day, all the jurisdiction,
        powers and authority, exercisable immediately before that day by
        all courts (except the Supreme Court or a High Court exercising
        jurisdiction under articles 226 and 227 of the Constitution) in relation
        to all service matters.”                                                   H
586                SUPREME COURT REPORTS                         [2020] 2 S.C.R.


A           4. Section 15 provides that the Tribunal shall exercise jurisdiction,
      power and authority in relation to an appeal against any order, decision,
      finding or sentence passed by a court martial.
               5. Section 34 of the Act reads as follows:-
               “34. Transfer of pending cases.—(1) Every suit, or other
B              proceeding pending before any court including a High Court or
               other authority immediately before the date of establishment of
               the Tribunal under this Act, being a suit or proceeding the cause
               of action whereon it is based, is such that it would have been
               within the jurisdiction of the Tribunal, if it had arisen after such
C              establishment within the jurisdiction of such Tribunal, stand
               transferred on that date to such Tribunal.
                  (2) Where any suit, or other proceeding stands transferred
               from any court including a High Court or other authority to the
               Tribunal under sub-section (1),—
D                  (a) the court or other authority shall, as soon as may be, after
                   such transfer, forward the records of such suit, or other
                   proceeding to the Tribunal;
                   (b) the Tribunal may, on receipt of such records, proceed to
                   deal with such suit, or other proceeding, so far as may be, in
E                  the same manner as in the case of an application made under
                   subsection (2) of section 14, from the stage which was reached
                   before such transfer or from any earlier stage or de novo as
                   the Tribunal may deem fit.”
             6. A Division Bench of the Allahabad High Court in Union of
F     India and others vs. Ram Baran 1 held that the phrase ‘other
      proceedings’ in Section 34 of the Act would include all appeals including
      Letters Patent Appeals (hereinafter referred to as LPAs). It was held
      that since the Tribunal is a substitute of the High Court, the Tribunal
      could decide an appeal against the order of a single judge which was
      required to be transferred to the Tribunal.
G
            7. We may point out that after the enactment of the Uttar Pradesh
      High Court (Abolition of Letters Patent Appeals) Act, 1962 Letters
      Patents are no longer applicable to the High Court of Allahabad.
      However, Special Appeals are provided against the judgment of a single
      1
H         Special Appeal Defective No. 445 of 2005
         BALKRISHNA RAM v. UNION OF INDIA AND ANR.                               587
                    [DEEPAK GUPTA, J.]

judge to a Division Bench. The High Court held that the term ‘other              A
proceedings’ include all such intra-court appeals.
       8. This view was doubted by another Division Bench of the
Allahabad High Court in W Ex Sigman Nand Kishore Sahoo vs. Chief
of Army Staff 2. Thereafter, the matter was referred to a Full Bench in
the said case and the Full Bench by a majority held as follows:-                 B
          “In view of the foregoing discussions, we are of the considered
          opinion that the special appeal filed under Chapter VIII Rule 5 of
          the Allahabad High Court Rules, 1952 against the judgment and
          order of the learned Single Judge pending adjudication immediately
          prior to the constitution of the Armed Forces Tribunal is not liable   C
          to be transferred to the Tribunal and the decision rendered by the
          division Bench in Ram Baran (Supra) does not lay down the correct
          law.”
        9. Ms. Preetika Dwivedi, learned counsel for the appellant submits
that the view of the Allahabad High Court is incorrect. She contends             D
that it has been held by this Court in a number of decisions including
Union of India And Others vs. Major General Shri Kant Sharma
And Another3 that the AFT exercises all the powers of the High Court.
She submits that it virtually substitutes the High Court in so far as matters
governed by the Act are concerned, and as such an LPA or Special
Appeal against the judgment of a single judge is also required to be             E
transferred to the AFT.
       10. We are not at all in agreement with this submission. Section
14(1) of the Act quoted hereinabove clearly provides that the AFT will
exercise powers of all courts except the Supreme Court or High Court
exercising jurisdiction under Article 226 and 227 of the Constitution of         F
India. Section 34 is very carefully worded. It states that ‘every suit’, or
‘other proceedings’ pending before any court including a High Court
immediately before the establishment of the Tribunal shall stand
transferred on that day to the Tribunal. The Legislature has clearly not
vested the AFT with the power and jurisdiction of the High Court to be           G
exercised under Article 226 of the Constitution. We are not going into
the question as to whether the Tribunal is amenable to the supervisory
jurisdiction of a High Court under Article 227 of the Constitution but
2
    2012 (1) ESC 386 (All); Special Appeal (Defective) No.610 of 2002
3
    (2015) 6 SCC 773                                                             H
588               SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A     there can be no manner of doubt that the High Court can exercise its
      writ jurisdiction even in respect of orders passed by the AFT. True it is,
      that since an appeal lies to the Supreme Court against an order of the
      AFT, the High Court may not exercise their extraordinary writ jurisdiction
      because there is an efficacious alternative remedy available but that
      does not mean that the jurisdiction of the High Court is taken away. In
B
      a given circumstance, the High Court may and can exercise its
      extraordinary writ jurisdiction even against the orders of the High Court.
            11. While holding so, we place reliance upon a judgment of a
      Constitution Bench of this Court in L. Chandra Kumar vs. Union of
      India & Ors.4. This court clearly held that judicial review is a part of
C     the basic structure of the Constitution and the power of judicial review
      vested in the High Courts and the Supreme Court cannot be taken away.
      The relevant portion of the judgment reads as follows:-
                   “78. …An analysis of the manner in which the Framers of
               our Constitution incorporated provisions relating to the judiciary
D              would indicate that they were very greatly concerned with
               securing the independence of the judiciary. These attempts were
               directed at ensuring that the judiciary would be capable of
               effectively discharging its wide powers of judicial review. While
               the Constitution confers the power to strike down laws upon the
E              High Courts and the Supreme Court, it also contains elaborate
               provisions dealing with the tenure, salaries, allowances, retirement
               age of Judges as well as the mechanism for selecting Judges to
               the superior courts. The inclusion of such elaborate provisions
               appears to have been occasioned by the belief that, armed by
               such provisions, the superior courts would be insulated from any
F              executive or legislative attempts to interfere with the making of
               their decisions. The Judges of the superior courts have been
               entrusted with the task of upholding the Constitution and to this
               end, have been conferred the power to interpret it. It is they who
               have to ensure that the balance of power envisaged by the
G              Constitution is maintained and that the legislature and the executive
               do not, in the discharge of their functions, transgress constitutional
               limitations. It is equally their duty to oversee that the judicial
               decisions rendered by those who man the subordinate courts and
               tribunals do not fall foul of strict standards of legal correctness
      4
H         (1997) 3 SCC 261
     BALKRISHNA RAM v. UNION OF INDIA AND ANR.                                  589
                [DEEPAK GUPTA, J.]

      and judicial independence. The constitutional safeguards which            A
      ensure the independence of the Judges of the superior judiciary,
      are not available to the Judges of the subordinate judiciary or to
      those who man tribunals created by ordinary legislations.
      Consequently, Judges of the latter category can never be
      considered full and effective substitutes for the superior judiciary
                                                                                B
      in discharging the function of constitutional interpretation. We,
      therefore, hold that the power of judicial review over legislative
      action vested in the High Courts under Article 226 and in this
      Court under Article 32 of the Constitution is an integral and
      essential feature of the Constitution, constituting part of its basic
      structure. Ordinarily, therefore, the power of High Courts and the        C
      Supreme Court to test the constitutional validity of legislations
      can never be ousted or excluded.
         79. We also hold that the power vested in the High Courts to
      exercise judicial superintendence over the decisions of all courts
      and tribunals within their respective jurisdictions is also part of the   D
      basic structure of the Constitution. This is because a situation
      where the High Courts are divested of all other judicial functions
      apart from that of constitutional interpretation, is equally to be
      avoided.”
       The aforesaid observations in L. Chandra Kumar (supra) leave             E
no manner of doubt that the power of judicial review vests with the High
Court even with regard to orders passed by the AFT and this power is
part of the basic structure of the Constitution.
       12. In L. Chandra Kumar (supra) this Court while dealing with
the issue of exclusion of the power of judicial review held that such           F
power cannot be excluded by legislation or constitutional amendment.
The relevant portion of the judgment reads as follows:-
          “90. We may first address the issue of exclusion of the power
      of judicial review of the High Courts. We have already held that
      in respect of the power of judicial review, the jurisdiction of the       G
      High Courts under Articles 226/227 cannot wholly be excluded. It
      has been contended before us that the Tribunals should not be
      allowed to adjudicate upon matters where the vires of legislations
      is questioned, and that they should restrict themselves to handling
      matters where constitutional issues are not raised. We cannot
      bring ourselves to agree to this proposition as that may result in        H
590      SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A     splitting up proceedings and may cause avoidable delay. If such a
      view were to be adopted, it would be open for litigants to raise
      constitutional issues, many of which may be quite frivolous, to
      directly approach the High Courts and thus subvert the jurisdiction
      of the Tribunals. Moreover, even in these special branches of law,
      some areas do involve the consideration of constitutional questions
B
      on a regular basis; for instance, in service law matters, a large
      majority of cases involve an interpretation of Articles 14, 15 and
      16 of the Constitution. To hold that the Tribunals have no power
      to handle matters involving constitutional issues would not serve
      the purpose for which they were constituted. On the other hand,
C     to hold that all such decisions will be subject to the jurisdiction of
      the High Courts under Articles 226/227 of the Constitution before
      a Division Bench of the High Court within whose territorial
      jurisdiction the Tribunal concerned falls will serve two purposes.
      While saving the power of judicial review of legislative action
      vested in the High Courts under Articles 226/227 of the Constitution,
D
      it will ensure that frivolous claims are filtered out through the
      process of adjudication in the Tribunal. The High Court will also
      have the benefit of a reasoned decision on merits which will be of
      use to it in finally deciding the matter.
          91. It has also been contended before us that even in dealing
E     with cases which are properly before the Tribunals, the manner in
      which justice is dispensed by them leaves much to be desired.
      Moreover, the remedy provided in the parent statutes, by way of
      an appeal by special leave under Article 136 of the Constitution, is
      too costly and inaccessible for it to be real and effective.
F     Furthermore, the result of providing such a remedy is that the
      docket of the Supreme Court is crowded with decisions of Tribunals
      that are challenged on relatively trivial grounds and it is forced to
      perform the role of a first appellate court. We have already
      emphasised the necessity for ensuring that the High Courts are
      able to exercise judicial superintendence over the decisions of the
G     Tribunals under Article 227 of the Constitution. In R.K. Jain case,
      after taking note of these facts, it was suggested that the possibility
      of an appeal from the Tribunal on questions of law to a Division
      Bench of a High Court within whose territorial jurisdiction the
      Tribunal falls, be pursued. It appears that no follow-up action has
H     been taken pursuant to the suggestion. Such a measure would
BALKRISHNA RAM v. UNION OF INDIA AND ANR.                                 591
           [DEEPAK GUPTA, J.]

have improved matters considerably. Having regard to both the             A
aforestated contentions, we hold that all decisions of Tribunals,
whether created pursuant to Article 323-A or Article 323-B of
the Constitution, will be subject to the High Court’s writ jurisdiction
under Articles 226/227 of the Constitution, before a Division Bench
of the High Court within whose territorial jurisdiction the particular
                                                                          B
Tribunal falls.
   xxx                        xxx                         xxx
    93. Before moving on to other aspects, we may summarise
our conclusions on the jurisdictional powers of these Tribunals.
The Tribunals are competent to hear matters where the vires of            C
statutory provisions are questioned. However, in discharging this
duty, they cannot act as substitutes for the High Courts and the
Supreme Court which have, under our constitutional set-up, been
specifically entrusted with such an obligation. Their function in
this respect is only supplementary and all such decisions of the
Tribunals will be subject to scrutiny before a Division Bench of          D
the respective High Courts. The Tribunals will consequently also
have the power to test the vires of subordinate legislations and
rules. However, this power of the Tribunals will be subject to one
important exception. The Tribunals shall not entertain any question
regarding the vires of their parent statutes following the settled        E
principle that a Tribunal which is a creature of an Act cannot
declare that very Act to be unconstitutional. In such cases alone,
the High Court concerned may be approached directly. All other
decisions of these Tribunals, rendered in cases that they are
specifically empowered to adjudicate upon by virtue of their parent
statutes, will also be subject to scrutiny before a Division Bench        F
of their respective High Courts. We may add that the Tribunals
will, however, continue to act as the only courts of first instance in
respect of the areas of law for which they have been constituted.
By this, we mean that it will not be open for litigants to directly
approach the High Courts even in cases where they question the            G
vires of statutory legislations (except, as mentioned, where the
legislation which creates the particular Tribunal is challenged) by
overlooking the jurisdiction of the Tribunal concerned.
   xxx                           xxx                              xxx
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592            SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A               99. In view of the reasoning adopted by us, we hold that clause
            2(d) of Article 323-A and clause 3(d) of Article 323-B, to the
            extent they exclude the jurisdiction of the High Courts and the
            Supreme Court under Articles 226/227 and 32 of the Constitution,
            are unconstitutional. Section 28 of the Act and the “exclusion of
            jurisdiction” clauses in all other legislations enacted under the aegis
B
            of Articles 323-A and 323-B would, to the same extent, be
            unconstitutional. The jurisdiction conferred upon the High Courts
            under Articles 226/227 and upon the Supreme Court under Article
            32 of the Constitution is a part of the inviolable basic structure of
            our Constitution. While this jurisdiction cannot be ousted, other
C           courts and Tribunals may perform a supplemental role in
            discharging the powers conferred by Articles 226/227 and 32 of
            the Constitution. The Tribunals created under Article 323-A and
            Article 323-B of the Constitution are possessed of the competence
            to test the constitutional validity of statutory provisions and rules.
            All decisions of these Tribunals will, however, be subject to scrutiny
D
            before a Division Bench of the High Court within whose jurisdiction
            the Tribunal concerned falls. The Tribunals will, nevertheless,
            continue to act like courts of first instance in respect of the areas
            of law for which they have been constituted. It will not, therefore,
            be open for litigants to directly approach the High Courts even in
E           cases where they question the vires of statutory legislations (except
            where the legislation which creates the particular Tribunal is
            challenged) by overlooking the jurisdiction of the Tribunal
            concerned. Section 5(6) of the Act is valid and constitutional and
            is to be interpreted in the manner we have indicated.”
F            13. Reliance placed by Ms. Dwivedi on the judgment of this Court
      in Major General Shri Kant Sharma (supra) is entirely misplaced.
      The issue before this Court in this case was whether the High Court
      was justified in entertaining writ petitions against the orders of the AFT.
      This is a judgment by two judges and obviously it cannot overrule the
      judgment of the Constitution Bench in L. Chandra Kumar (supra).
G     The Division Bench, after referring to various judgments including the
      judgment in L. Chandra Kumar (supra), summarised its findings in
      para 36 as follows:-
               “36. The aforesaid decisions rendered by this Court can be
            summarised as follows:
H
      BALKRISHNA RAM v. UNION OF INDIA AND ANR.                                 593
                 [DEEPAK GUPTA, J.]

         (i) The power of judicial review vested in the High Court under        A
      Article 226 is one of the basic essential features of the Constitution
      and any legislation including the Armed Forces Tribunal Act, 2007
      cannot override or curtail jurisdiction of the High Court under
      Article 226 of the Constitution of India
          (ii) The jurisdiction of the High Court under Article 226 and         B
      this Court under Article 32 though cannot be circumscribed by
      the provisions of any enactment, they will certainly have due
      regard to the legislative intent evidenced by the provisions of the
      Acts and would exercise their jurisdiction consistent with the
      provisions of the Act.
                                                                                C
          (iii) When a statutory forum is created by law for redressal of
      grievances, a writ petition should not be entertained ignoring the
      statutory dispensation.
         (iv) The High Court will not entertain a petition under Article
      226 of the Constitution if an effective alternative remedy is available   D
      to the aggrieved person or the statute under which the action
      complained of has been taken itself contains a mechanism for
      redressal of grievance.”
       What this Court held was that though the power of the High Court
under Article 226 of the Constitution is a basic essential feature of the       E
Constitution which cannot be taken away, the High Court should not
entertain a petition under Article 226 of the Constitution if any other
effective alternative remedy is available to the aggrieved person or the
statute, under which the action complained of has been taken, itself
contains a maxim for redressal of grievance. We have our doubt, with
regard to the correctness of the directions (iii) & (iv) of the judgment,       F
since in our opinion it runs counter to the judgment rendered by the
Constitution Bench.
       14. It would be pertinent to add that the principle that the High
Court should not exercise its extraordinary writ jurisdiction when an
efficacious alternative remedy is available, is a rule of prudence and not      G
a rule of law. The writ courts normally refrain from exercising their
extraordinary power if the petitioner has an alternative efficacious
remedy. The existence of such remedy however does not mean that the
jurisdiction of the High Court is ousted. At the same time, it is a well
settled principle that such jurisdiction should not be exercised when there
                                                                                H
594                SUPREME COURT REPORTS                           [2020] 2 S.C.R.


A     is an alternative remedy available5. The rule of alternative remedy is a
      rule of discretion and not a rule of jurisdiction. Merely because the
      Court may not exercise its discretion, is not a ground to hold that it has
      no jurisdiction. There may be cases where the High Court would be
      justified in exercising its writ jurisdiction because of some glaring illegality
      committed by the AFT. One must also remember that the alternative
B
      remedy must be efficacious and in case of a Non-Commissioned Officer
      (NCO), or a Junior Commissioned Officer (JCO); to expect such a person
      to approach the Supreme Court in every case may not be justified. It is
      extremely difficult and beyond the monetary reach of an ordinary litigant
      to approach the Supreme Court. Therefore, it will be for the High Court
C     to decide in the peculiar facts and circumstances of each case whether
      it should exercise its extraordinary writ jurisdiction or not. There cannot
      be a blanket ban on the exercise of such jurisdiction because that would
      effectively mean that the writ court is denuded of its jurisdiction to
      entertain such writ petitions which is not the law laid down in L. Chandra
      Kumar (supra).
D
             15. Ms. Dwivedi, placed reliance on the observations made in
      Major General Shri Kant Sharma (supra) that, “jurisdiction of the
      Tribunal constituted under the Armed Forces Tribunal Act is in substitution
      of the jurisdiction of the civil court and the High Court so far as it relates
      to suit relating to condition of service of the persons”, subject to the
E     provisions of the Act. It is clear that the intention of the court was not to
      hold that the tribunal is a substitute of the High Court in so far as its writ
      jurisdiction is concerned because that is specifically excluded under
      Section 14(1) of the Act. We cannot read this one sentence out of
      context. It is true that proceedings on the original side even in exercise
F     of writ jurisdiction are to be transferred to the tribunal for decision by
      the AFT because the original jurisdiction now vests with the AFT. This
      however, does not mean that the AFT can exercise all the powers of the
      High Court.
             16. In Rojer Mathew vs. South Indian Bank Ltd. & Ors.6 the
G     Constitution Bench of this Court, of which one of us (Deepak Gupta, J.
      was a member), clearly held that though these tribunals may be manned
      by retired judges of High Courts and Supreme Court, including those
      established under Articles 323-A and 323-B of the Constitution, they
      5
          Union of India vs. T.R. Varma AIR 1957 SC 882
      6
          2019 (15) SCALE 615
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      BALKRISHNA RAM v. UNION OF INDIA AND ANR.                              595
                 [DEEPAK GUPTA, J.]

cannot seek equivalence with the High Court or the Supreme Court.            A
The following observations are relevant:-
          “194. Furthermore, that even though manned by retired judges
      of High Courts and the Supreme Court, such Tribunals established
      under Article 323-A and 323-B of the Constitution cannot seek
      equivalence with High Court or the Supreme Court. Once a judge         B
      of a High Court or Supreme Court has retired and he / she no
      longer enjoys the Constitutional status, the statutory position
      occupied by him / her cannot be equated with the previous position
      as a High Court or a Supreme Court judge. The rank, dignity and
      position of Constitutional judges is hence sui generis and arise not
      merely by their position in the Warrant of Precedence or the salary    C
      and perquisites they draw, but as a result of the Constitutional
      trust accorded in them. Indiscriminate accordance of status of
      such Constitutional judges on Tribunal members and presiding
      officers will do violence to the very Constitutional Scheme.”
       17. The contention of the learned counsel for the appellant, if       D
accepted, would strike at the very root of judicial independence and
make the High Court subordinate to the AFT. This can never be the
intention of the Legislature. The High Court is a Constitutional Court
constituted under Article 214 of the Constitution and are courts of record
within the meaning of Article 215. It is obvious that the order of the       E
High Court cannot be challenged before any other forum except the
Supreme Court. The provision of intra-court appeal whether by way of
Letters Patents or special enactment is a system that provides for
correction of judgments within the High Courts where a judgment
rendered by a single judge may be subject to challenge before a Division
Bench. This appeal to the Division Bench does not lie in all cases and       F
must be provided for either under the Letters Patent or any other special
enactment. Even where such appeal lies the appeal is heard by two or
more judges of the High Court. We cannot envisage a situation where
an appeal against the order of a sitting judge of the High Court is heard
by a Tribunal comprising of one retired judge and one retired Armed          G
Forces official. Therefore, we reject the contention that an intra court
appeal from the judgment of a single judge of the High Court to a Division
Bench pending in the High Court is required to be transferred under
Section 34 of the Act.

                                                                             H
596             SUPREME COURT REPORTS                          [2020] 2 S.C.R.


A            18. As far as the merits of the case are concerned, the undisputed
      fact is that the appellant could not clear the aptitude test. It has been
      urged that even if he could not clear the aptitude test, he should have
      been considered for appointment in some other post before being
      discharged from service. It is also urged that in the order of discharge it
      is not indicated that the case of the appellant was considered for such
B
      alternative service.
             19. In our view, it is not necessary to indicate in the order of
      discharge whether such consideration took place or not. From the records
      of the case, we find that before discharge, the name of the appellant
      was considered for two categories but unfortunately the appellant could
C     not meet the height criteria for appointment to either of the posts. Thus,
      this clearly shows that his case was considered as per the extant policy
      but he was not fit for appointment. In this view of the matter, we find no
      merit in the appeal, and hence it is dismissed. Pending application(s) if
      any, stand(s) disposed of.
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      Kalpana K. Tripathy                                         Appeal dismissed.




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