- (1.) Leave granted in both the Special Leave Petitions Nos. 8416 and 9235 of 1992.
(2.) Special LEAVE Petition No.8416 of 1992 has been preferred by the Union of India and its officers against the judgment and order dated February 26, 1992 passed by the High Court of Gauhati in Civil Rule No.208 of 1990 and the other Special Leave Petition No.9235 of 1992 has been preferred by the appellant I.S. Chemma against the same order passed by the Gauhati High Court. In a Court Martial proceeding initiated against I.A. Cheema under the Border Security Force act, 1968 and the consequential punishment of dismissal, a writ petition was moved before the Gauhati High Court by I.S. Cheema who at the relevant time was holding the post of Commandant (Selection Grade) in the B.S.F. The Court Martial proceeding was initiated on a charge of corruption by directing subordinate officers to arrange for weekly payments to the said Commandant by encouraging smuggling activities in the border. Before the High Court, the said I.S. Cheema contended that the Court Martial had not been property conducted in view of the fact that he had been denied reasonable opportunity of being heard and contest the said proceedings. It was also contended that the Court Martial itself was not properly constituted because one of the members was a Commandant in the Border Security Force but such member was junior to him in seniority. It appears that by the impugned order, the High Court has accepted both the contentions and accordingly interfered with the impugned order of dismissal from service.
(3.) The learned Additional Solicitor General appearing in support of the appeal preferred by the Union of India has contended that under the rules constitution of Court Martial was to be made with officials not below the rank of a Commandant for trial of a member of B.S.F. holding the rank of Commandant. It is not necessary that such Commandant in the Court Martial Board should also be senior to Sri Cheema who was also a Commandant in B.S.F. It was contended by Sri Cheema that since he was a Commandant (Selection Grade), he must be held senior to the Commandant not in the Selection Grade. The learned Additional Solicitor General has referred to a decision of this Court in Union of India v. S.S. Ranade, (1995) 4 SCC 462 . In the said decision, it has been held that the Commandant (Selection Grade) and the Commandant not in the selection grade both are governed by the same rules and they belong to same rank and cadre. Therefore, Commandant (Selection Grade) cannot claim superannuation at the age of 58 years when the age of superannuation of a Commandant is 55 years. Mr. Tulsi, learned Additional Solicitor General, has submitted that as the Court Martial was constituted with a Commandant, the provision of the rules had been complied with and the High Court had gone wrong in holding that Cheema being Commandant (Selection Grade) was senior to Commandant not in the Selection Grade and such junior Commandant cannot be a member in the Board. In our view, such contention of the learned Additional Solicitor General is justified. The Board in our view had been constituted properly by taking a Commandant in it and it was not necessary to have a Commandant (Selection Grade) in the Board because Sri Cheema was a Commandant (Selection Grade). In the facts of the case, it also does not appear that Court Martial proceeding was vitiated for not giving reasonable opportunity to Sri Cheema to defend him in the Court Martial proceeding.;