Case: U.O.I.  Vs. Charanjit S. Gill

by reason of the election of such person being declared to be void. There are innumerable other Parliamentary and State legislative enactments which are replete with such provisions. The twentieth amendment of the Constitution is an instance where the de facto doctrine was applied by the constituent body to remove any suspicion or taint of illegality or invalidity that may be argued to have attached itself to judgments, decrees, sentences or orders passed or made by certain District Judges appointed before 1966, otherwise that in accordance with the provision of Article 233 and Article 235 of the Constitution. The twentieth amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of U.P., 1967(1) SCR 77, that appointments of District Judges made otherwise that in accordance with the provisions of Articles 233 and 235 were invalid. As such appointments had been made in many States, in order to pre-empt mushroom litigation springing up all over the country, it was apparently thought desirable that the precise position should be stated by the constituent body by amending the Constitution. Shri Phadke, learned counsel for the appellants, argued that the constituent body could not be imputed with the intention of making superfluous amendments to the Constitution. Shri Phadke invited us to say that it was a necessary inference from the twentieth amendment of the Constitution that, but for the amendment, the judgments, decrees, etc. of the District Judges appointed otherwise than in accordance with the provisions of Article 233 would be void. We do not think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed not to make superfluous legislation. The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious). When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to particular case does not lead to the necessary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan case this Court had held that appointments of District Judges made otherwise than in accordance with Article 233 of the Constitution were invalid. Such appointments had been made in Uttar Pradesh and a few other States. Doubts had been cast upon the validity of the judgments, decrees etc. pronounced by those District Judges and large litigation had cropped up. It was to clear those doubts and not to alter the law that the twentieth amendment of the Constitution was made. This is clear from the Statement of Objects and Reasons appended to the Bill which was Â? passed as Constitution (20th Amendment) Act, 1966. The statement said :Amendments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of Article 233 of the Constitution...... As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of writ petitions and other cases have already been filed challenging their validity. The functioning of the District Courts in Uttar Pradesh has practically come to a standstill. It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States......"This position of law was again reiterated in State of U.P. v. Rafiquddin, 1988(1) SLR 491 : 1987 Supp. SCC 401 wherein it was held :"We have recorded findings that 21 unplaced candidates of 1970 examination were appointed to the service illegally in breach of the Rules. We would, however, like to add that even though their appointment was not in accordance with the law but the judgments and orders passed by them are not rendered invalid. The unplaced candidate are not usurpers of office, they were appointed by the competent authority to the posts of munsifs with the concurrence of the High Court, though they had not been found suitable for appointment according to the norms fixed by the Public Service Commission. They have been working in the judicial service during all these years and some of them have been promoted also and they have performed their functions and duties as de facto judicial officers. "A person who is ineligible to judgeship, but who has nevertheless been duly appointed and who exercises the powers and duties of the office of a de facto judge, he acts validly until he is properly removed". Judgment and orders of a de facto judge cannot be challenged on the ground of his ineligibility for appointment." 22. In view of this position of law the judgments rendered by the court-martial which have attained finality cannot be permitted to be re-opened on the basis of law laid down in this judgment. The proceedings of any court-martial, if already challenged on this ground and are pending adjudication in any Court in the country would, however, be not governed by the principles of `de facto doctrine. No pending petition shall, however, be permitted to be amended to incorporate the plea regarding the ineligibility and disqualification of Judge-Advocate on the ground of appointment being contrary to the mandate of Rule 40(2). This would also not debar the Central Government or the appropriate authority in passing fresh orders regarding appointment of the fit persons as Judge-Advocate in pending court-martials, if so required.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is contended by Shri Rawal, learned ASG that a person fit to be appointed asis 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. We cannot agree with this general proposition made on behalf of the appellant inasmuch as(2) of Rule 40 specifically provides that members of afor 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 ain a court martial". A combined reading of Rules 39, 40 and 102 suggest that an officer who is disqualified to be a part of court martial is also disqualified from acting and sitting as aat 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 aat 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(2) of Rule 40.14. Arguments of the learned ASG, if analysed critically, and accepted would mean that in effect and essence no disqualification or eligibility can be assigned to any officer in becoming aStretching it further it can be argued that as Rule 40 does not refer to the ineligibility or disqualification of an officer to be aeven an officer below the rank of a Captain can become a member of the court martial for the trial of a Field Officer as bar of(3) of Rule 40 is not applicable. Such an interpretation is uncalled for and apparently contradictory in terms.15. 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 humiliation of being subjected to trial by officers of lower in rank. The importance of theas 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 theAvailing of the services or seeking advise from a person junior in rank may apparently be not possible ultimately resulting in failure of justice.16. It has been argued that as officers of the same rank or higher in rank than the officers facing the trial in court martials are not available, an interpretation as rendered by the impugned judgment would render the holding of court martials impossible. Such an argument is to be noticed for only being rejected.(2) of Rule 40 itself gives a discretion to the convening officer who is authorised to appoint a member of thete who is lower in rank than the officers facing the trial, if he is of the opinion that officer of such rank is not (having due regard to the exigencies of the public service) available, subject to a further condition that such opinion is required to be recorded in the convening order. It implied, therefore, that the provisions of(2) of Rule 40 are not mandatory because they give a discretion to appoint a member of the court martial or awho is lower in rank than the officer facing the trial under the circumstances specified. Rule 39, admittedly, has no exception and is thus mandatory.17. Further relying upon Note 2 mentioned at the foot of Rule 102 providing, "as to disqualification of aCAR 39(2)", the learned ASG submitted that the said Note having the force of law has been followed by the Army authorities from the very beginning and thus disqualifications of aIt is not disputed that Section 191 of the Army Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act and Section 192 to make regulations for all or any of the provisions of the Act other than those specified in Section 191. All Rules and Regulations made under the Act are required to be published in the official gazette and on such publication shall have the effect as if enacted in the Act. No power is conferred upon the Central Government of issuing Notes or issuing orders which could have the effect of the Rules made under the Act. Rules and Regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the Rules and Regulations framed thereunder. The administrative instructions issued or the Notes attached to the Rules which are not referable to any statutory authority cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Government, however, has the power to fill up the gaps in supplementing the rules by issuing instructions if the Rules are silent on the subject provided the instructions issued are not inconsistent with the Rules already framed. Accepting the contention of holding Note 2 as supplementing Rules 39 and 40 would amount to amending and superseding statutory rules by administrative instructions. When Rule 39 read with Rule 40 imposes a restriction upon the Government and a right in favour of the person tried by ato the effect that a person lower in rank shall not be a member of the court martial or be athe insertion of Note 2 to Rule 102 cannot be held to have the effect of a Rule or Regulation. It appears that the `notes have been issued by the authorities of the Armed Forces for the guidance of the officers connected with the implementation of the provisions of the Act and the Rules and not with the object of supplementing or superseding the statutory Rules by administrative instructions. After examining various provisions of the Act, the Rules and Regulations framed thereunder and perusing the proceedings of theconducted against the respondent No. 1, we are of the opinion that thethough not forming a part of the Court, yet being an integral part of it is required to possess all such qualifications and be free from the disqualifications which relate to the appointment of an officer to theIn other words aappointed with theshould 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 regardingis specifically recorded in the convening order. As in the instant case,was lower in rank to the accused officer and no satisfactionopinion in terms of(2) of Rule 40 was recorded, the Division Bench of the High Court was justified in passing the impugned judgment, giving the authorities liberty to initiate freshproceedings, if any, if they are so advised in accordance with law and also in the light of the judgment delivered by the High Court.21. Fears have been expressed that in case the proceedings of theare quashed on the ground of thebeing lower in rank than the officer facing trial before themany judgments delivered, orders passed and actions taken by varioustill date would be rendered illegal as according to appellants a number ofhave already been held and conducted under the assumption of the disqualification not being referable to Rule 40(2), on the strength of Note 2 attached to Rule 102 of the Rules. In that event, it is apprehended, aof new litigation would be opened which ultimately is likely to not only weaken the discipline in the Armed Forces but also result in great hardship to all those whose rights have already been determined. Such an apprehension is misplaced in view of "de facto doctrine" born out of necessity as acknowledged and approved by various pronouncements of the Courts.In view of this position of law the judgments rendered by thewhich have attained finality cannot be permitted to beon the basis of law laid down in this judgment. The proceedings of anyif already challenged on this ground and are pending adjudication in any Court in the country would, however, be not governed by the principles of `de facto doctrine. No pending petition shall, however, be permitted to be amended to incorporate the plea regarding the ineligibility and disqualification ofon the ground of appointment being contrary to the mandate of Rule 40(2). This would also not debar the Central Government or the appropriate authority in passing fresh orders regarding appointment of the fit persons asls, if so required.