The Supreme Court of India has once again reiterated that
Courts should ordinarily be loath in interfering in postings and transfers of military
personnel.
However, there is something amiss. In the said case, as
recorded in the decision of the Supreme Court, the Union of India submitted
(and the Court apparently accepted on face value without there being any
opposition from the opposite side) that such matters needed to be agitated before
the Armed Forces Tribunal (AFT) and not the Supreme Court.
However, the reality is that there is a direct
prohibition in the Armed Forces Tribunal Act, 2007, which spells out that the AFT cannot entertain matters concerning postings and transfers. Section 14 of the Act confers power
on the AFT to adjudicate upon ‘service matters’, however, proviso (ii) to
Section 3(o)(iv) clearly and explicitly states that postings and transfers
would not form a part of ‘Service Matters’. The relevant provision runs as under:
“.....but
shall not include matters relating to:
(ii)
transfers and postings including the change of place or unit on posting whether
individually or as a part of unit, formation or ship in relation to the persons
subject to the Army Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957) and
the Air Force Act, 1950 (45 of 1950)”
In fact, the Union has always protested before the AFT in such
matters that the jurisdiction on postings and transfers is only with Constitutional
Courts, that is, the High Courts and the Supreme Court, and not with the AFT.
Besides other pointers, in the humble opinion of this
author, this shows the lack of seriousness of various parties even when matters are being heard by the highest Court of the land of the largest democracy. Not a good sign.
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