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CASE NO.: Appeal (civil)  127 of 2003

PETITIONER: Union of India

RESPONDENT: S.P.S. Rajkumar and Ors

DATE OF JUDGMENT: 24/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (With Civil Appeal Nos. 128/2003 and 606/2003)

Dr. ARIJIT PASAYAT, J.

       These three appeals relate to the order passed by a  Division Bench of the Delhi High Court allowing the writ  petition filed by S.P.S. Rajkumar, the appellant in C.A.No.128  of 2003. The other two appeals have been filed by the Union of  India, i.e. Civil Appeal No.127 of 2003 against the main  judgment and Civil Appeal No. 606 of 2003 against the  modification order.  

       Background facts in a nutshell are as follows:

       Respondent-Rajkumar joined Air Force as a  Commissioned Officer in the Logistics Branch. He rose to the  rank of Group Captain in 1998. According to the appellant- Union of India, respondent-Rajkumar committed large scale  impropriety in the matter of purchases while he was  functioning in the rank of Group Captain. On 12.1.2000, the  charge sheet was accordingly issued listing out 9 charges  relating to financial impropriety committed by him. The  conveying order for the Assembly of the General Court Martial  (in short the ’GCM’) was issued and Judge Advocate was  appointed. On 24.1.2000, the GCM proceedings assembled on  a charge sheet containing nine charges, all of which pertained  to improper purchase procedure and financial impropriety. On  13.3.2000, GCM proceedings concluded with the finding that  the respondent was guilty of four charges. Accordingly, it  sentenced the respondent to forfeiture of two years seniority  and severe reprimand. By order dated 13.4.2000, the  Convening Authority of GCM i.e. AOC- Incharge, Maintenance  Command Head Quarters, Nagpur, on review, ordered for re- assembly of the GCM for revision of the sentence.  

       On 24.4.2000, this Court in Union of India and Anr. v.  Charanjit S. Gill and Ors. (JT 2000 (5) SCC 135) interpreted  certain provisions of the Army Act, 1950 (in short the ’Act’)  and the Army Rules, 1954 (in short the ’Army Rules’) holding  that the Judge Advocate should be equal or superior to the  rank of the accused officer just like the Rules provided for the  members of GCM. However, this Court gave prospective effect  to the judgment declaring that the same shall not be applied  to proceedings which have attained finality and also will not be

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applied to pending cases in courts where such a plea has not  been raised. On 13.5.2000, pursuant to the order of  14.3.2000, the GCM re-assembled and passed a fresh  sentence of dismissal and revoked the earlier sentence.  

       The respondent-Rajkumar submitted two pre-  confirmation petitions on 25th May, 2000 and 30th June, 2000.  

       The Chief of Air Staff on 7.9.2000 confirmed the findings  and sentence. He also dealt with the aspect of the seniority of  the Judge Advocate. The Chief of Air Staff cited two reasons on  the aspect of Judge Advocate, (a) question of seniority of Judge  Advocate was not raised before the GCM; and (b) in fact Judge  Advocate of sufficient seniority was not available and by  doctrine of necessity the concerned Judge Advocate was the  only available officer.  

       The respondent-Rajkumar filed post confirmation petition  under Section 161 (2) of the Air Force Act, 1950 (in short the  ’Air Force Act’) on 30.1.2000 and the same was rejected by the  Central Government on 24.9.2001. By judgment dated  5.8.2002, the Division Bench of the High Court quashed the  decision of the GCM proceedings of dismissal of service on the  ground that the Judge Advocate was junior in rank and,  therefore, the GCM proceedings were vitiated.  However, liberty  was granted to proceed afresh with GCM. The modification  application filed by Union of India was also dismissed by the  High Court.  

       In support of the appeal, learned counsel for the Union of  India submitted that the vires of certain provisions though  raised were not pressed into service before the High Court. The  only ground pressed into service was that the Judge Advocate  was junior in rank. Therefore, the proceedings were illegal.  

       With reference to Rule 40 of the Air Force Rules, 1969 (in  short the ’Air Force Rules’), it is submitted that member of  GCM should not be junior, but it permits the juniors to be  taken as members in certain circumstances. The Judge  Advocate is not a member of GCM.

       It is not a case where at the first instance respondent-  Rajkumar had raised any objection about the alleged lack of  seniority of the Judge Advocate. It is submitted that the  provisions in the Army Act and under the Army Rules are  entirely different from Air Force Act and Air Force Rules.  It is  pointed out that any Rule similar to Rules 103/104 of the  Army Rules did not exist in the Air Force Rules.  

       The GCM proceedings were over. Only the sentence part  remained to be finalized. There was no objection raised during  the GCM proceedings and even no amendment was sought for  to pending proceedings.  Upto the date of judgment there was  no plea relating to the lack of seniority of the Judge Advocate.  The order of the GCM clearly indicated that there was no  officer available who was senior.

       It is submitted that the High Court had erred in holding  that the relevant date was the date of filing of the writ petition.  It should be the date of the judgment of the GCM.

       In reply, learned counsel for the respondent-Rajkumar  submitted that the Gill’s judgment (supra) has full application  under the Air Force Rules and the Army Rules. Similar  provisions relating to composition of GCM are the same. The

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convening order does not speak of any non-availability.  

       It is to be noted that there was no challenge to the  finding that there was no senior army officer available. Rule 46  which relates to the eligibility of the member does not speak of  seniority. It speaks of the same rank or superior rank. There  was no objection at any point of time about the lack of  seniority.  In fact the High Court has fallen into error in  holding that the relevant date is the date of filing of the writ  petition.  

       There is also no plea raised in these appeals as regards  the finding that nobody who was senior was available.     Therefore, the High Court was not justified in interfering with  the conclusions of the GCM holding the same to be not validly  constituted.  The order is set aside. The appeals of the Union  of India stand allowed to that extent. Raj Kumar’s appeal is  sans merit.  

       At this juncture, it is to be noted that the question of  appropriateness of the sentence was raised before the High  Court. The High Court did not examine that aspect in view of  the conclusions that the composition of the GCM was not  legal. The High Court shall only consider that aspect. Though  certain pleas of mala fide appear to have been raised in the  writ petition, the High Court has specifically noted that, that  plea was not pressed into service. Therefore, the High Court  shall consider the writ petition only on the question of  sentence and no other issue.  

       The appeals are accordingly disposed of.  There will be no  order as to costs.