IMPORTANT POINT
High Court judgment based on a Supreme Court decision which was later held as not correct law cannot be sustained.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of a Division Bench of the Uttaranchal High Court allowing the writ petition filed by the respondent. The respondent had filed the writ petition under Article 226 of the Constitution of India, 1950 (in short the ‘Constitution’) questioning the order dated 13.11.1990 whereby his services were terminated by orders of the Chief of Army Staff.

2. The High Court primarily relied on a decision of this Court in Major Radha Krishan v. Union of India & Ors.,1 (AIR 1996 SC 3091) and allowed the writ petition.

3. The stand of the appellants is that the High Court failed to notice that the relied-upon decision was held to be not correctly decided by a three judge Bench in Union of India & Ors. v. Harjeet Singh Sandhu,2 [2001(5) SCC 593].

4. Learned counsel for the respondent submitted that the decision of the High Court was not based only on Major Radha Krishan’s case (supra) but on other grounds.

5. The High Court allowed the writ petition with the following conclusions :

“In Major Radha Krishan v. Union of India & Ors. (AIR 1996 SC 3091, the Hon’ble Apex Court has held that where the trial by Court-Martial against the offences committed by an army personnel was barred by limitation under Section 122 of the Act, the summary procedure for termination under R.14(2) of the Rules, cannot be followed on the ground that the trial by Court-Martial was inexpedient or impracticable. Such a satisfaction that the trial was inexpedient or impracticable can be arrived only at a time when trial by a Court Martial is permissive or possible. In view of the said principle of law and for the reasons as discussed above by us, the impugned order by which the services of the petitioner were dismissed is liable to be quashed. Accordingly the writ petition is allowed. The impugned order is quashed. The petitioner shall be entitled to the consequential benefits, admissible (as of right) to him under the rules treating him Captain, the post he held on the date when the impugned order was passed. No order as to costs.”

6. In Harjeet Singh Sandhu’s case (supra) the scope and ambit of the Army Act, 1950 (in short the ‘Act’) and Rule 40 of the Army Rules, 1954 (in short the ‘Rules’) inter alia fell per consideration. This court also referred to earlier decision in Chief of Army Staff v. Major Dharam Pal Kukrety,3 [1985(2) SCC 412].

7. In Harjeet Singh Sandhu’s case (supra) it was inter alia observed as follows :

37. On the meaning which we are placing on the term “impracticable” as occurring in Rule 14(2) we proceed to provide resolutions to the several problems posed by the illustrations given by the learned Additional Solicitor-General. According to us : In Illustration (i) the expiry of the period of limitation prescribed by Section 122 renders the trial by Court Martial “impracticable” on the wider meaning of the term. There is yet another reason to take this view. Section 122 prescribes a period of limitation for the commencement of court-martial proceedings but Parliament has chosen not to provide any bar of limitation on exercise of power conferred by Section 19. We cannot, by an interpretative process, read the bar of limitation provided by Section 122 into Section 19 of the Act in spite of a clear and deliberate legislative abstention. However, we have to caution that in such a case, though power under Section 19 read with Rule 14 may be exercised but the question may still be who has been responsible for the delay? The period prescribed by Section 122 may itself be taken laying down a guideline for determining the culpability of delay. In spite of power under Section 19 read with Rule 14 having become available to be exercised on account of a trial by a Court Martial having been rendered impracticable on account of bar of limitation created by Section 122, other considerations would assume relevance, such as whether the facts or set of facts constituting misconduct being thre