UNION OF INDIA & ORS.versusLT. COL. RAHUL ARORA

                 [2024] 9 S.C.R. 186 : 2024 INSC 672

                          Union of India & Ors.
                                    v.
                          Lt. Col. Rahul Arora
                      (Civil Appeal No. 2459 of 2017)
                             09 September 2024
                    [Prashant Kumar Mishra* and
                 Prasanna Bhalachandra Varale, JJ.]

                           Issue for Consideration
       Legality of the appointment of Judge Advocate who was admittedly
       junior to the respondent.

                                  Headnotes†
       Service Law – Army Medical Corps – Respondent was
       charge-sheeted for: (i) extraneous consideration declaring
       an army recruit as ‘fit’ after previously declaring him ‘unfit’;
       (ii) absenting himself without leave from 11.04.2004 to
       19.04.2004; (iii) conduct of unbecoming of an officer and the
       character expected of his position – Upon conclusion of trial
       by General Court Martial and two of the three charges proven,
       he was dismissed from service – Armed Forces Tribunal upheld
       the findings of guilt – However, the High Court allowed the
       writ petition preferred by the respondent solely on the ground
       that an officer junior to the respondent has acted as Judge
       Advocate in GCM:
       Held: Before the High Court, two different convening orders
       were produced – One by the appellant and the other one by the
       respondent – While the documents submitted by the appellant
       contained the reasons for appointing a junior as the Judge Advocate
       whereas in the convening order submitted by the respondent no
       such reason was mentioned – After comparing the documents, the
       High Court recorded a finding that the convening order Annexure R-I
       (produced by the appellant before the High Court) has been altered
       after the same was dispatched and received by the Headquarters
       Artillery Centre – The High Court specifically observed that once
       a document has been put in the course of transmission by the
       General Officer Commanding, Andhra Pradesh, Tamil Nadu,

* Author
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               Union of India & Ors. v. Lt. Col. Rahul Arora


     Karnataka and Kerala area, the same could not be changed/altered
     or modified except after recording that there was a mistake, which
     needs correction – Once dispatched by the officer signing the
     same, the communication of the document is complete and any
     alteration in the document is unauthorised – It is quite apparent
     that the reason for culling out exception as held permissible by
     this Court in Charanjit Singh Gill case, was not mentioned in the
     document while the same was dispatched by the issuing authority
     and supplied to the respondent – Subsequent mentioning of the
     reason in the other document, after putting signatures by the issuing
     authority, was unauthorised and impermissible, the High Court
     has correctly held that the convening order suffers from incurable
     defect as held by this Court in Charanjit Singh Gill case – The
     legal position is thus well settled in Charanjit Singh Gill case that
     non recording of reasons of appointment of an officer junior in
     rank as a Judge Advocate in the convening order invalidates the
     Court Martial proceedings – The High Court has not committed
     any error of law in holding so in the facts and circumstances of
     the case. [Paras 8, 9]

                              Case Law Cited
     Union of India & Anr. v. Charanjit Singh Gill [2000] 3 SCR 245 :
     (2000) 5 SCC 742 – relied on.
     Union of India v. S.P.S. Rajkumar and Ors. [2007] 5 SCR 521 :
     (2007) 6 SCC 407 – referred to.

                                List of Acts
     Army Act; Army Rules.

                             List of Keywords
     Service Law; Army Medical Corps; Dismissal from service;
     Appointment of Judge Advocate; Convening orders; Alteration in
     document; Incurable defect in convening order; Non-recording of
     reasons in convening order; Court Martial Proceedings.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2459 of 2017
     From the Judgment and Order dated 21.05.2014 of the High Court of
     Punjab & Haryana at Chandigarh in CWP No. 20380 of 2012
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                           Appearances for Parties
       R Bala, Sr. Adv., Mukesh Kumar Maroria, Ashok Panigrahi, Ishaan
       Sharma, Aaditya Dixit, Advs. for the Appellants.
       G.S. Ghuman, Harkirat Singh, Jatinder Pal Singh, Advs. for the
       Respondent.
                  Judgment / Order of the Supreme Court
                                  Judgment
       Prashant Kumar Mishra, J.
       This appeal is directed against the order dated 21.05.2014 passed
       by the High Court of Punjab & Haryana in CWP No. 20380 of 2012.
       Under the said order, the High Court has set-aside the order passed
       by the Armed Forces Tribunal, Chandigarh,1 which has dismissed
       the appeal of the respondent and upheld the findings and sentence
       awarded by the General Court Martial.2
2.     The respondent was first commissioned in the Army Medical Corps3
       as medical officer from 29.05.1978 to 31.07.1983. He was again
       commissioned as regular officer in AMC on 25.02.1987. In 1996, he
       was designated as Graded ENT Specialist and was then upgraded as
       classified Specialist ENT in the year 2001. In the month of February,
       2002, the respondent was posted with Military Hospital, Secunderabad
       wherein he was required to examine new recruits being forwarded
       by various training centres.
3.     In September, 2002 one Recruit/Soldier/GD K. Siddaiah alleged
       that the respondent paid money for reviewing its remarks “unfit ” to
       “review after 15 days”. The statement of the recruit was recorded
       by one Major Mrs. R.M.B. Mythilly who initiated AFMSF-7. The
       respondent was charge-sheeted, and three charges were framed
       against him, namely:
       (i)   The respondent, an ENT Specialist at a Military Hospital, had, for
             extraneous consideration declared an Army recruit, K. Siddaiah,
             as ‘fit’ after previously declaring him ‘unfit’. Consequently, the
             first charge against him was under Section 57(c) of the Army


1    ‘AFT’
2    ‘GCM’
3    ‘AMC’
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                   Union of India & Ors. v. Lt. Col. Rahul Arora


             Act for knowingly and with intent to defraud altering a document/
             remarks in the AFMSF-7.
      (ii)   The second charge was under Section 39(a) of the Army Act for
             absenting himself without leave from 11.04.2004 to 19.04.2004.
      (iii) The third charge was under Section 45 of the Army Act for
            conduct unbecoming of an officer and the character expected
            of his position.
4.    Upon conclusion of trial by GCM and upon finding two out of three
      charges proven, the respondent was dismissed from service against
      which he preferred proceedings before AFT, which upheld the findings
      of guilt and the sentence of dismissal from service as awarded by
      the GCM. It is this order of the AFT which was assailed by the
      respondent before the High Court. The High Court allowed the writ
      petition preferred by the respondent solely on the ground that an
      officer junior to the respondent has acted as Judge Advocate in the
      GCM contrary to the law laid down by this Court in Union of India
      & Anr. vs. Charanjit Singh Gill.4
5.    Assailing the impugned order of the High Court, Shri R. Bala, learned
      Senior Advocate for the appellant/Union of India has argued that there
      is no blanket prohibition on appointing an officer of lower rank than
      the charged officer to serve as Judge Advocate in a Court Martial.
      He would strenuously urge that in Charanjit Singh Gill (supra),
      this court has carved out an exception to the effect that “a Judge
      Advocate appointed with the Court Martial should not be an officer
      of a rank lower than that of the officer facing the trial unless the
      officer of such rank is not (having due regard to the exigencies of
      public service) available and the opinion regarding non-availability is
      specifically recorded in the convening order”. According to learned
      senior counsel, the present case falls within the above exception
      inasmuch as non-availability of an officer of equivalent or higher rank
      was specifically recorded in the convening order. It is also argued,
      referring to Army Rule 103 that a Court Martial shall not be invalid
      merely by reason of any invalidity in the appointment of the Judge
      Advocate officiating thereat. Reference is made to Union of India
      vs. S.P.S. Rajkumar and Ors.5


4    [2000] 3 SCR 245 : 2000 (5) SCC 742
5    [2007] 5 SCR 521 : 2007 (6) SCC 407
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6.     Per contra, Shri G.S. Ghuman, learned counsel appearing for the
       respondent would submit that one Major Rajiv Dutta was appointed
       as a Judge Advocate in the Court Martial, who was junior in rank to
       the respondent. This was informed to the respondent by forwarding
       certified copy of the convening order under the Army Rules 33 (7)
       and 34 and the same was also received by the respondent on
       07.10.2014. Both the copies were filed with the written statement.
       In these orders, the prerequisites of bringing the appointment of an
       officer equivalent or junior to the rank of the respondent was not
       mentioned, therefore, the High Court has taken the correct view in
       the matter by referring to Charanjit Singh Gill (supra).
7.     In the present appeal, we are only concerned with the legality of the
       appointment of Judge Advocate who was admittedly junior to the
       respondent, therefore, we are not dwelling on the facts of the case
       or merits of the charges.
8.     Before the High Court, two different convening orders were produced.
       One by the appellant and the other one by the respondent. While
       the documents submitted by the appellant contained the reasons for
       appointing a junior as the Judge Advocate whereas in the convening
       order submitted by the respondent no such reason was mentioned.
       After comparing the documents, the High Court has recorded a
       finding that the convening order Annexure R-I (produced by the
       appellant before the High Court) has been altered after the same
       was dispatched and received by the Headquarters Artillery Centre,
       Hyderabad. The High Court noted that Annexure P-I is identically
       worded, but in the second page, the words “in my opinion having
       due regard to the exigencies of public service an officer of equal
       or superior rank to the accused is not available to act as Judge
       Advocate” are additional. The High Court specifically observed that
       once a document has been put in the course of transmission by
       the General Officer Commanding, Andhra Pradesh, Tamil Nadu,
       Karnataka and Kerala area, the same could not be changed/altered
       or modified except after recording that there was a mistake, which
       needs correction. Once dispatched by the officer signing the same,
       the communication of the document is complete and any alteration
       in the document is unauthorised.
9.     In the above circumstances, it is quite apparent that the reason for
       culling out exception as held permissible by this Court in Charanjit
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               Union of India & Ors. v. Lt. Col. Rahul Arora


     Singh Gill (supra), was not mentioned in the document while the
     same was dispatched by the issuing authority and supplied to the
     respondent. Subsequent mentioning of the reason in the other
     document, after putting signatures by the issuing authority, was
     unauthorised and impermissible, the High Court has correctly held
     that the convening order suffers from incurable defect as held by
     this Court in Charanjit Singh Gill (supra) in the following words:
           “16. It is true that a Judge Advocate theoretically performs
           no function as a Judge but it is equally true that he is an
           effective officer of the Court conducting the case against
           the accused under the Act. It is his duty to inform the
           Court of any defect or irregularity in the charge and in
           the constitution of the Court or in the proceedings. The
           quality of the advice tendered by the Judge Advocate is
           very crucial in a trial conducted under the Act. With the
           role assigned to him a Judge Advocate is in a position to
           sway the minds of the Members of the Court Martial as his
           advice or verdict cannot be taken lightly by the persons
           composing the Court who are admittedly not law-knowing
           persons. It is to be remembered that the Courts Martial
           are not part of the judicial system in the country and are
           not permanent courts.
           18. In view of what has been noticed hereinabove, it is
           apparent that if a “fit person” is not appointed as a Judge
           Advocate, the proceedings of the Court Martial cannot
           be held to be valid and its finding legally arrived at. Such
           an invalidity in appointing an “unfit” person as a Judge
           Advocate is not curable under Rule 103 of the Rules.
           If a fit person possessing requisite qualifications and
           otherwise eligible to form part of the General Court Martial
           is appointed as a Judge Advocate and ultimately some
           invalidity is found in his appointment, the proceedings of
           the Court Martial cannot be declared invalid. A “fit person”
           mentioned in Rule 103 is referable to Rules 39 and 40.
           It is contended by Shri Raval, learned Additional Solicitor
           General that a person fit to be appointed as Judge Advocate
           is such officer who does not suffer from any ineligibility
           or disqualification in terms of Rule 39 alone. It is further
           contended that Rule 40 does not refer to disqualifications.
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          We cannot agree with this general proposition made on
          behalf of the appellant inasmuch as sub-rule (2) of Rule
          40 specifically provides that Members of a Court Martial for
          trial of an officer should be of a rank not lower than that of
          the officer facing the trial unless such officer is not available
          regarding which specific opinion is required to be recorded
          in the convening order. Rule 102 unambiguously provides
          that “an officer who is disqualified for sitting on a Court
          Martial, shall be disqualified for acting as a Judge Advocate
          at that Court Martial”. A combined reading of Rules 39, 40
          and 102 suggests that an officer, who is disqualified to be
          a part of a Court Martial, is also disqualified from acting
          and sitting as a Judge Advocate at the Court Martial. It
          follows, therefore, that if an officer lower in rank than the
          officer facing the trial cannot become a part of the Court
          Martial, the officer of such rank would be disqualified for
          acting as a Judge Advocate at the trial before a GCM.
          Accepting a plea to the contrary would be invalidating the
          legal bar imposed upon the composition of the Court in
          sub-rule (2) of Rule 40.
          20. The purpose and object of prescribing the conditions
          of eligibility and qualification along with desirability of
          having Members of the Court Martial of the rank not
          lower than the officer facing the trial is obvious. The law-
          makers and the rule-framers appear to have in mind the
          respect and dignity of the officer facing the trial till guilt is
          proved against him by not exposing him to the humiliation
          of being subjected to trial by officers of lower rank. The
          importance of the Judge Advocate as noticed earlier being
          of a paramount nature requires that he should be such
          person who inspires confidence and does not subject the
          officer facing the trial to humiliation because the accused
          is also entitled to the opinion and services of the Judge
          Advocate. Availing of the services or seeking advice from
          a person junior in rank may apparently be not possible
          ultimately resulting in failure of justice.”
10. The legal position is thus well settled in Charanjit Singh Gill (supra)
    that non recording of reasons of appointment of an officer junior in
    rank as a Judge Advocate in the convening order invalidates the
[2024] 9 S.C.R.                                                       193

                 Union of India & Ors. v. Lt. Col. Rahul Arora


     Court Martial proceedings. The High Court has not committed any
     error of law in holding so in the facts and circumstances of the case.
11. The next argument raised by the appellant taking shelter of Army
    Rule 103 is referred only to be rejected for the reason that the
    protection under this rule is available only where a fit person has
    been appointed as a Judge Advocate. If the person so appointed is
    not fit to act and perform the duties of the Judge Advocate as held
    in Charanjit Singh Gill (supra), Rule 103 would not come to the
    rescue of the appellant. Moreover, such argument has already been
    rejected by this Court in paragraph 18 of the report in Charanjit
    Singh Gill (supra).
12. In view of the forgoing discussion, we find no substance in this Civil
    Appeal which deserves to be and is hereby dismissed.

     Result of the case: Appeal dismissed.



     †
         Headnotes prepared by: Ankit Gyan