IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 614 of 2001 EX MAJOR VIRENEDRA SHARMA V/S UNION OF INDIA & ORS Mr. SK NANDA, for the appellant / petitioner Mr. MS GODARA for Mr. VK MATHUR, for the respondent Date of Order : 8.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MOHAMMAD RAFIQ,J. ORDER ----- This appeal has been filed by the appellant against the impugned judgment of the learned Single Judge dt. 23.5.2001, dismissing the petitioner's writ petition No. 3959/1992. The brief facts of the case are, that on 29.7.1992 the appellant filed the present writ petition, claiming the following reliefs:- “i) a writ, direction or order in the nature of certiorari quashing the impugned order of dismissal of the petitioner from service dated December, 11,1990 as contained in Annexure 10 above; ii) a writ, direction or order in the nature of mandamus staying the operation, enforcement and implementation of the impugned order of dismissal of the petitioner from service dated December 11, 1990 as contained in Annexure No. 10 above, pending this humble petition in the Hon'ble Court; iii) a writ or order or direction in the nature of mandamus to direct the opposite parties to pay the salary and allowances ration allowances and house rent reimbursement with effect from 07 February 1991 ie the date of dismissal from service. iv) a writ or order or direction in the nature of the mandamus allowing the petitioner to get encashment of annual leave which was restricted during the trial by the General Court Martial with effect from 1985 till date, which comes to 12 months ie 60 days entitled annual leave for each calendar year. v) a writ or order or direction in the nature of mandamus allowing the petitioner to get transfer grant, packing allowance and daily allowance for the duration and movements to various stations which were ordered to the petitioner during the trial by the General Court Martial. vi) a writ or order or direction in the nature of mandamus allowing the petitioner to get his promotion to the equal rank of his batchmates ie the rank of Colonel which has been denied due to this false case. vii) any other writ or direction or order deemed fit and proper in the facts and circumstances of the case of the petitioner. Viii) and also award the cost of the writ petition in favour of the petitioner and against the opposite parties concerned” The averments made in the writ petition, interalia are, that a court of enquiry was ordered against the petitioner in August, 1982, and subsequently General Court Martial was convened on 13.1.1985. Then, a writ petition was filed by the petitioner before this Court, being No. 88/1985 which was decided on 20.7.1988, and of course, some interim order was also passed therein. Thereafter the Court Martial heard the matter from the stage directed by this Court vide judgment dt. 20.7.1988, and ultimately sentenced 2 the petitioner, imposing a punishment of forfeiture of six years of service for seniority in the same rank, vide Annexure-7. It is alleged that this was sent to the confirming authority, who vide order dt. 7.12.1990 ordered the revision of sentence vide Annexure 8 dt. 7.12.1990. Thereafter, the Court Martial again considered the matter, and passed the order Annexure-10 dt. 11.12.1990, and thereby imposed the punishment of dismissal from service. Then it is alleged in para-29, that this sentence imposed by the General Court Martial was confirmed on 6.2.1991, and the post confirmation petition dt. 7.2.1991, which was submitted by the petitioner, has been rejected by the Central Government in July, 1991. Interalia with these factual averments, the order Annexure-10, passed by the General Court Martial, has been challenged, interalia on the ground of it being wholly without jurisdiction, more so as the order Annexure-8 was passed by the authority not competent to pass it, and certain other procedural defects have also been alleged. In reply the power of the authority passing the order Annexure-8 was pleaded by the respondents. The learned Single Judge, vide impugned judgment negatived all grounds as raised point by point; regarding the procedural defects of the proceedings of the Court Martial. Then, at page-21 onwards the question of power of authority passing the order Annexure-8 was also considered, 3 and that has also been decided against the petitioner. In the result, the writ petition was dismissed. Learned counsel for the appellant vehemently submitted that the authority, passing the order Annexure-8 had no jurisdiction to pass the order, on the face of provisions of para-472 of the Regulations, whereunder only General Officer Commanding in Chief is the authority, who can pass the order of revision, and in the present case the order has been passed not by the G.O.C. in Chief, but only by G.O.C., and therefore, the subsequent order passed by the General Court Martial, being Annexure-10, is bad. We have considered the submission. However, a look at the writ petition shows, that as noticed above, the writ petition had been filed in July 1992, and it is alleged in para-29, that the order Annexure-10 was confirmed by the confirming authority vide order dt. 6.2.1991, and a post confirmation petition had also been filed by the petitioner, which has been dismissed by the Central Government in July, 1991. Learned counsel for the petitioner was repeatedly asked, to point out from the writ petition, if he has ever challenged the order of confirmation dt. 6.2.1991, and/or the order of the Central Government passed in July 1991, dismissing the petitioner's petition under Section 164(2); but learned counsel could 4 not point out any such challenge. Significantly the two orders had not been filed by the petitioner either. In our view, that being the position, the things boil down to the situation, that the order dt. 11.12.1990 Annexure-10, had been confirmed, as required by Section 164 (1) by the confirming authority vide order dt. 6.2.1991, and an appeal under Section 164(2) did come to be filed by the petitioner on 7.2.1991, and admittedly, that has been dismissed in July, 1991. Notwithstanding all this, in the writ petition filed in July, 1992, neither of these orders have been challenged. In our view, in absence of those orders being challenged, the writ petition could not be filed, for merely challenging the order dt. 11.12.1990, Annexure-10. That being the position, the exercise, required by the learned counsel for the appellant, to be undertaken by this Court, is simply exercise in futility, and need not be undertaken. Thus, though for different reasons, we do not find any ground to interfere with the ultimate dismissal of the writ petition by the learned Single Judge. The appeal is, therefore, dismissed. The parties are left to bear their own costs of the litigation. ( MOHAMMAD RAFIQ ),J. ( N P GUPTA ),J. 5 /Sushil/ 6