UNION OF INDIA AND ORS. versus DIPAK KUMAR SANTRA

Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court allowing the appeal MAT No. 653 of 1998. In said appeal challenge was to the order passed by the learned Single Judge of the High Court dated 4.12.1997 whereby the writ petition filed by the present respondent was dismissed. The writ had challenged the order passed by the Army discharging the writ petitioner from service purportedly Rule 13(3) of the Army Rules, 1954 (in short 'The Rules'). respondent was discharged from the service on the he had failed twice in the clerks' proficiency and aptitude and for that reason he could not be re-mustered on absence of any vacancy in the post of store keeper trade. Learned Single Judge held that in view of the the competent authority is entitled to discharge the respondent who was not considered likely to become soldier. It was also noticed that the cause of action petition arose wholly outside the jurisdiction of the The writ petitioner was, therefore, dismissed by the order, Division Bench of the High Court held that there vacancy available and the writ petitioner can be against the vacancy if such vacancy is released for his appointment. The order was directed not be precedent.

pp. 281–282, margin G

Learned counsel for the appellant submitted of the findings of the learned Single Judge that Rule the Rules clearly ruled out the relief claimed by writ in addition to the issue of jurisdiction of Calcutta High deal with matter, the Division Bench could not have relief. The learned counsel for the respondent submitted on the peculiar facts of the case, the Division Bench Court was justified in its view. It is not in dispute that Rule 13(3) of the Rules applied to the facts of the case. Reference has been the learned counsel for the appellants to the letter of Headquarter, New Delhi laying down the procedure to be followed in respect to individuals who fail in proficiency and aptitude test while undergoing the basic training. We need not go into the applicability of referred to, in view of the clear stipulation in Rule 13 Rules, which has application to the facts of the case.

pp. 282–283, margin D

Rule 13(3) so far as relevant reads as follows : "13. Authorities empowered to authorise dicharge.- (1) Each of the authorities specified in column 3 of the Table below shall be the competent authority to discharge from service person subject to the Act specified in column 1 thereof on the grounds specified in column 2. (3) In this table "commanding officer" means the officer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned officers and warrant officers of the Special Medical Section of the Army Medical Corps, the "commanding officer" means the Director of the Medical Services, Army, and in the case of junior commissioned officers and warrant officers of Remounts, Veterinary and Farms Corps, the "Commanding Officer" means the Director remounts, Veterinary and Farms. Category Grounds of Competent Manner of discharge authority to of discharge authorise discharge 2 3 4 Persons IV. All classes Commanding In the case of enrolled of discharge Officer of persons under the Officer requesting but not Commanding to be discharged attested Recruit before fulfilling Reception Camp the conditions of or a Recruiting, of their enrolment Technical the Commanding Recruiting or officer will exercise Deputy Technical this power only Recruiting Officer. where he is 1 2 3 4 satisfied desirability sanctioning application strength will not hereby unduly reduced. Recruits considered unlikely efficient soldiers will be under this

pp. 283–284, margin A

The High Court's judgment is clearly unsupportable the writ petition filed by the respondent shall be treated dismissed. The appeal is allowed. No costs. K.K.T. Appeal

p. 284, margin C