JUDGMENT

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.

2. 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.

3. 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 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.

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

5. 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.

6. 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.

7. 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.

8. 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 p