Rakesh Razdan vs Union of India

N. Paul Vasanthakumar, C.J. - This writ petition is preferred by the writ petitioner with a prayer to quash order dated 13.01.1999 issued by

respondent no.3 awarding displeasure against the petitioner as well as letter dated 24.07.1998 communicating adverse remarks to the petitioner

for the period ending March, 1997, letter dated 28.12.1998 communicating rejection of representation against adverse remarks, letter dated

25.06.2001 rejecting the representation by respondent no.2 and order issued by respondent no.3 whereby the petitioner has been excluded from

consideration and promotion to the post of Deputy Commandant from the date of promotion given to his immediate juniors with all consequential

benefits.

When the matter was heard on 22.12.2015, Mr. Rajesh Kumar Thappa, CGSC, the learned counsel appearing for the respondents raised a

preliminary objection regarding the maintainability of the writ petition before this Bench, stating that cause of action to challenge the impugned

orders has arisen within the jurisdiction of Kashmir Province, therefore, the writ petition could be filed before the Srinagar Wing of this Court.

Since a preliminary objection has been raised regarding want of jurisdiction of this Court, without going into merits of the case the said issue has

been taken for determination.

According to the respondents the petitioner joined as Assistant Commandant on 02.07.1993 and was posted to Company Commander ""C

Coy of 77 Bn, BSF deployed in CI Role (Srinagar) with effect from 28.06.1995 to 22.04.1997 and his company remained deployed at Leeward

Hotel, Batpura with Coy Head quarter at Metro Hotel. One Constable Ranjeet Ekka, while on sentry duty at Leeward Hotel post lost his personal

weapon SLR butt. No. 235 body No. DJ-3952 along with one magazine and 20 rounds from the post on intervening night of 24/25th March,

1997. The post personnel of petitioner's company had consumed liquor as celebration of Holi festival and played Holi with civilians. The civilians

entered in Leeward Hotel while the sentry was on duty as he was asleep on the chair near the Bukhari under the influence of liquor. The rifle in

question might have been stolen by any civilian for ANEs during the said period. The petitioner who was also present in the Post failed to exercise

proper command and control over his troops at Leeward Hotel post and was accordingly recommended for issuance of IG's displeasure.

Consequently the 3rd respondent issued displeasure on 13.01.1999. Accordingly adverse remarks were made pertaining to incident which took

place on 24.03.1997 in the ACR of the petitioner for the year 1996-1997.

Thus the contention of learned counsel for the respondent is that entire cause of action for issuing the displeasure and entry in the ACR had

occurred while the petitioner was serving at Srinagar and therefore no cause of action has arisen to challenge the order before this Bench. Learned

counsel also relied on a judgment of Hon'ble the Supreme Court reported in AIR 1999 SC 1591 (Rajni Sehgal v. State of J&K and anr) in

support of his contention. He has also relied on a Full Bench decision of Allahabad High Court reported in 2004 Lawsuit (All) 1314 ( Rajendra

Kumar Mishra v. Union of India). Learned counsel also submitted that before filing this writ petition, leave of the Chief Justice of this Court or

in the absence of Chief Justice, leave from the senior moist Judge, has not been obtained, therefore, entertaining the writ petition by this Bench

without the leave is impermissible and the petitioner has to go before the Srinagar Bench to challenge the impugned orders.

Mr. P. N. Raina, learned senior counsel appearing for the petitioner on the other hand argued that the said jurisdictional issue having not been

raised in the objections filed by the official respondents, same cannot be allowed to be raised at the time of hearing. Learned senior counsel also

submitted that some of the orders under challenge are passed by the Director General of Border Security Force at New Delhi, therefore, the

petitioner can maintain the writ petition in this Court.

I have considered the rival submissions.

The learned senior counsel fairly submitted that before filing this writ petition in the year 2001 no leave from the Chief Justice or the senior most

Judge, if the Chief Justice was not stationed at Jammu, was obtained. Thus the point to be considered is as to whether any cause of action has

arisen within the territorial jurisdiction of Jammu Bench which is having jurisdiction over 11 districts.

Admittedly the incident which was stated as a reason to express the displeasure and recording of Adverse ACR as well as submitting

representation to remove the adverse entry and rejection of such representation due to which the petitioner was not given promotion, have

happened at Srinagar while the petitioner was serving at Srinagar. The Hon'ble Supreme Court in the decision reported in AIR 1999 SC 1591

(Rajni Sehgal v. State of J&K and anr) considered the very issue, namely, entertaining the LPA preferred at Srinagar Bench against an order

passed in writ petition by Jammu Bench which stayed the operation of the order of the writ court. The writ petition was filed by the petitioner in

that case at Jammu while she was serving as Officiating Superintendent Sub Jail Reasi, Jammu. Entertaining LPA and granting interim stay by the

Division Bench at Srinagar was raised as an issue as the entire cause of action arose within the jurisdiction of Jammu Bench. It was urged in the

Special Leave Petition before the Supreme Court that as Division Bench was available at Jammu, the LPA should have been filed at Jammu which

could not have been filed at Srinagar particularly when the petitioner has filed a caveat in Jammu Bench through her lawyer as she was

apprehending that LPA may be filed. It was argued on behalf of the respondents before the Hon'ble Supreme Court that there were summer

vacations of the High Court, therefore without the order of the Chief Justice in terms of circular dated 26.10.1993 seeking leave to file appeal,

LPA was filed and rightly entertained by the Srinagar Wing. The Hon'ble Supreme Court rejected the said contention by holding that LPA was

filed at the time when High Court was not having any vacations, therefore, the contention that the Circular has no application during summer

vacation cannot be accepted. The Circular having been issued by the Chief Justice by order dated 26.10.1993 stating that appeals relating to

Jammu wing of the High Court shall be filed, heard and decided at Jammu wing and appeals relating to Srinagar Wing shall be filed heard and

decided at Srinagar wing.

Letters Patent Appeals directed against judgment/orders delivered/passed at Srinagar Bench shall be filed, heard and decided at the Srinagar

Bench. Similarly, such appeals directed against judgment/orders delivered/passed at the Jammu Bench shall filed, heard and decided at the Jammu

Bench.

Provided that if it is not practicable to file an appeal pertaining to the particular Bench at that Bench it may be filed at the other Bench with the

leave of the Chief Justice or in his absence, of the Senior Judge available at the headquarter.

This order shall take effect from 1st November 1993

The only exceptional circumstance stated in that proviso is that when it is not practicable to file such an appeal at that wing, it can be filed

before other wing with the leave of the Chief Justice or his absence, the senior Judge available at the headquarter. It was also noticed by the

Hon'ble the Supreme Court that from week commencing 30.07.1996 Division Bench was available at Jammu therefore the respondents cannot

take the benefit of proviso to Circular dated 26.10.1993 and file the appeal at Srinagar. Thus, entertaining the appeal at Srinagar as well as passing

interim order was set aside and this court was given directions to transfer the LPA to Jammu Bench of the High Court for consideration.

A full Bench of Allahabad High Court in the decision reported as 2004 Lawsuit (All) 1314 (Rajendra Kumar Mishra v. Union of India),

considered the issue as to whether the order of Chief of Army staff at Delhi, can be challenged in any High Court of the Country. The full Bench

held that unless the cause of action or a part of cause of action has arisen within the territorial jurisdiction of a High Court, writ petition under

Article 226 of the Constitution of India cannot be entertained. The Full Bench relied on the judgments of Hon'ble the Supreme Court reported in

AIR 2001 SC 416 (Rajasthan High Court Association v. Union of India) and (1995) 4 SCC 738 (U.P Rashtriya Chini Mill Adhikari

Parishad v. State of U.P) and in paragraphs 40 and 41 held thus:

For the reasons given above we are of the opinion that the Chief of Army Staff can only be sued either at Delhi where he is located or at a

place where the cause of action, wholly or in part, arises.

We may mention that a ""cause of action"" is the bundle of facts which, taken with the law applicable, gives the plaintiff a right to relief against the

defendant. However, it must include some act done by the defendant, since in the absence of an act, no cause of action can possibly occur [ vide

Radhakrishnamurithy v. Chandrasekhara Rao, AIR 1966 A.P. 334; Ram Awalamb v. Jata Shankar, AIR 1969 All.526 (FB), and

Salik Ram Adya Prasad v. Ram Hakhem and others, AIR 1973 All. 1071.

In the light of the above judgments, I am of the view that the writ petition filed by the petitioner before Jammu wing, without obtaining the leave

from the Chief Justice, is not maintainable and by following the judgment of Hon'ble Supreme Court reported in AIR 1999 SC 1591 Rajni

Sehgal v. State of J&K and anr) this writ petition is transferred to Srinagar wing of the High Court for hearing. The writ petition shall be posted

for disposal in the 3rd week of April 2016.