JUDGMENT

Vishal Mishra, J. - Present Writ Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Peeth Ko Appeal) Adhiniyam, 2005 has been filed assailing the order dated 08.11.2005 passed by learned Single Judge in Miscellaneous Petition No.3196 of 1992 dismissing the writ petition on merits.

2. Facts giving rise to the litigation are that the appellant was enrolled in the Army (Corps of Artillery) on 03rd of September, 1969. He was promoted to the ranks of Lance Naik and Naik respectively and due for promotion to the rank of Havaldar. The petitioner's promotion was obstructed, for which, a complaint was made by him on 12/13 of January, 1988 before the Chief of Army Staff. The unit of the petitioner was moved from Gurgaon to some where in Northern Sector. Hence, a small unit was left for Gurgaon. The appellant proceeded on annual leave from 12th January, 1988 to 13th March, 1988. He reported back from leave on 23rd of March, 1988. It was pointed out that the authorities were annoyed with the appellant and alleged that on 15th January, 1988 at Raj Rifle Regimental Centre, Delhi, he had taken Rs.12,000/- from Gunner Balwan Singh of his unit. The charges were levelled against the appellant under Section 64(a) of the Army Act regarding accepting of illegal gratification to the tune of Rs.12,000/- for procuring enrollment of Shri Siya Ram and Shri Madan Lal. The respondent No.3 ordered the trial by a District Court Martial. On 9th of December, 1988, the Court found the appellant to be guilty of the charges and awarded punishment to suffer rigorous imprisonment for one year and to be dismissed from the service vide order of sentence dated 20th of December, 1988 and in pursuance to the same, he was arrested on 15th of December, 1988.

3. The appellant while in custody made a representation on 04th of March, 1989 to the Chief of Army Staff and the same was considered and rejected on 16.08.1989. The appellant preferred a separate petition on 09th of November, 1990 to the Central Government for grant of pension and it was informed to the appellant vide letter dated 07th May, 1991 of the Ministry of Defence, Government of India that since the appellant was dismissed from service, therefore, he was not entitled for pensionary benefits. Thereafter, the impugned punishment in the proceedings of District Court Martial has been put to challenge by way of filing the Miscellaneous Petition and learned Writ Court has dismissed the Miscellaneous Petition vide impugned order dated 08.11.2005.

4. Learned Senior Counsel appearing for the appellant submits that legal ground regarding the competency of the authority to conduct the District Court Martial proceedings is neither pleaded in the miscellaneous petition nor in this writ appeal, but as the legal ground is available to him, therefore, he may be permitted to argued on the same.

5. The aforesaid aspect is not objected by the counsel appearing for the respondents as the legal issue can always be addressed before the Court. Therefore, this Court has permitted the appellant's counsel to argue the legal issue.

6. It is pointed out that the competent authority has not passed a convening order, rather the order has been signed by one Satish Chander, Major, Deputy Assistant Accountant General for Officiating Commander, which is not permissible under the Army Act, 1950 and the Army Rules, 1954. Section 109 of the Act provides that a general court-martial may be convened by the Central Government of the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff. Section 110 of the Army Act provides that a district court martial may be convened by an officer having power to convene a general court- martial or by officer empowered in this behalf by way of any such officer.

7. It is further pointed out that convening order does not reflect that it has been passed by a competent authority under the Army Act and, therefore, the entire proceedings are vit