A dispute regarding a man who has not yet been recruited as a soldier in the Army, could not be dealt with by the Armed Forces Tribunal (AFT), the Allahabad High Court has ruled.
Setting aside an order by a single judge bench on October 6, a division bench of Chief Justice D Y Chandrachud and Justice Yashwant Varma passed the judgement on a special appeal filed by the Union of India, through Defence Ministry, on November 23.
The matter pertained to one Kapil Kumar, who had participated in a rally for recruitment as soldier in the Army in Meerut district in the year 2011. He cleared the physical test, but was disqualified on medical grounds. However, the matter went for review during, which he was declared medically fit. Kumar then appeared in a common entrance examination and was empanelled in merit list. He was asked to approach the Army Recruitment Office in Meerut in December 2011, from where he was supposed to get an appointment letter as solider. However, when he approached the said office, he was not given the appointment letter.
Kumar later lodged a civil suit. As the matter remained pending, he filed a writ petition. He withdrew the civil suit in March this year.
On October 6, the single judge bench, while hearing Kumar’s case, referred the proceedings to the AFT under Section 34 of the AFT Act, 2007, and directed that the records of the petition be transferred to the Tribunal based in Lucknow. The Defence Ministry then filed a special appeal against the order.
Perusing the matter, the division bench said that the single judge had :simply ordered that the proceedings be transferred under Section 34” without considering as to whether the matter was within the jurisdiction of the Tribunal. The relief, which Kumar seeks “is to provide him entry into the service of the Army. There is not even an averment to the effect that he was enrolled as a member of the Armed Force,” the division bench said.
The court added that the dispute about Kumar’s medical fitness arose before he joined the service and, therefore, the matter would not fall within the definition of the expression “service matters” under Section 3 (o) of the AFT Act.
The court further said that the AFT Act could apply only on those, who were controlled by the Army Act 1950, which could be possible only when a person is recruited in the Army.
As per the division bench’s direction, the matter has now been referred back to the single judge bench, which will decide on Kumar’s claim regarding appointment in the Army on merit.