IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of case Writ Petition No. 814 of 2006(S/S) Date on: Feb. 19, 2008 A.F.R. (Approved for Reporting) Not Approved for Reporting Date: 19.2.2008 (Initials of Judge) Note: Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 814 of 2006 (S/S) No. 15578189 K Rect/Clk (G.D.) Alok Pandey S/o Sri Harish Chandra Pandey R/o Village Bagad, Post Pangoot, District Nainital-Uttaranchal. …………….. Petitioner Versus 1. The Union of India through Secretary Defence, Govt. of India, New Delhi. 2. Commandant Bombay Engineer Group & Centre, Kirkee, Pune-3. …………… Respondents Mr. P.C. Bisht, learned counsel for the petitioner. Mr. Pradeep Joshi, Centeral Govt. Counsel for the respondents. Hon’ble Prafulla C. Pant, J. By means of writ petition, moved under Article 226 of the Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 22nd March 2006, passed by respondent No.2, discharging the petitioner from the Indian Army. The petitioner has further sought quashing of the Army letter No.A / 20335 / 1 / GS / MT5 dated 17th March 2003. Lastly, the petitioner has sought his reinstatement as Recruit/Clerk (G.D.) of Training Battalion-1, Bombay Engineer Group and Centre, Kirkee, Pune-3. 2) Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed by the parties. 3) The petitioner through Almora Branch Recruiting Office appeared for physical test on 19.11.2004, and qualified the same where after, he was medically examined on 20th November 2004, and found fit. On 28.11.2004, and written test was held for recruitment of Clerk (G.D.) in the Indian Army. Vide letter dated 5th January 2005, the Branch Recruiting Office informed the petitioner that he has passed the entrance examination and he was required to complete certain formalities like filing the original educational qualification certificates and other certificates for verification. Petitioner’s claim is that he was enrolled in the Indian Army on 12.03.2005, and was sent to Bombay Engineer Group and Centre, Kirkee, Pune-3 for training as Recruit/ Clerk (G.D.) from Almora, where he joined the Centre on 14th March 2005. However, after completion of six months Basic Military Training, a Proficiency Aptitude Test which was conducted during the training period, the petitioner was informed that he has not qualified the same and vide impugned order dated 22nd March 2006, the petitioner was discharged form Army w.e.f. 31st March 2006. The petitioner has alleged in the writ petition that his discharged form Army is illegal, as he could not have been discharged merely for the reason that he could not qualify the Proficiency Aptitude Test. 4) In the counter affidavit, the respondents have admitted that the petitioner was recruited through Soldier Board, Almora against a vacancy of Clerk (G.D.) and was sent for training to Bombay Engineer Group and Center, Kirkee for Basic Military Training. It is stated in the counter affidavit that the petitioner could not qualify the Proficiency Aptitude Test (hereinafter referred as PTA) and in terms of letter No. A / 20335/ 1 /GS / MT 5 dated 17th March 2003, the petitioner was liable to be discharged as there was no vacancy available for him for re-mustering. Defending the action under the Army Rules, 1954, it is stated in the counter affidavit that the petitioner obtained only 22 per cent marks in the PAT held on 11th June 2005, while the minimum marks required were 40 per cent. In the supplementary counter affidavit filed on behalf of the respondents it is stated that the petitioner was discharged from service under Army Rule 13(3)(iv) for he was ‘unlikely to become an efficient Soldier’ as he failed in the PAT. 5) Before further discussion, it is pertinent to mention here that Clause (iv) of Sub-Rule (3) of Rule 13 of the Army Rules, 1954, which empowers a Commanding Officer to discharge a Recruit enrolled under the Army Act but not attested, on certain grounds which includes ‘Recruits who are considered unlikely to become efficient soldiers’. Admittedly, the petitioner did not qualify the PAT conducted by the Center where the petitioner was undergoing Basic Military Training. Annexure C.A. -1 to the counter affidavit is the copy of the instructions issued by the Directorate General Military Training, Army Headquarters, New Delhi vide letter No. A /20335/ 1 /GS /MT 5 dated 17th March 2003, which provides that Recruit Clerks enrolled in the Army through Recruiting Organization and Regiment/Training Centers are required to qualify separate written test to assess their suitability to be enrolled as Clerks. Clause (d) of Para-7 of said letter containing instructions further provides that those recruits who did not qualify the PAT should be re-mustered or disposed off as existing instructions in the subject. In Para- 20 of the counter affidavit it has been specifically stated that all the possibilities were explored to re-muster the petitioner in any other trade, but it was not possible as there was no vacancy. 6) In view of Rules 9 read with Rule 11 and Rule 13 of the Army Rules, 1954 and the instructions contained in letter dated 17th March 2003, there appears no illegality in the impugned order dated 22nd of March 2006, whereby the petitioner was discharged w.e.f. 31.03.2006. Through, by amendment, the petitioner has added a relief in the writ petition that the instructions dated 17th March 2003 (Annexure C.A. -1 to the counter affidavit) be declared illegal, but no ground whatsoever has been mentioned in the writ petition as to why said instructions can be said to be illegal. Learned counsel for the petitioner drew attention of this Court to Section 15 of the Army Act, 1950, and submitted that the discharged of the petitioner is in violation of said Section. A plain reading of Section 15 makes it clear that it bars a Recruit form claiming discharge on the ground except the one admissible to him under the Rules. It does not restrict the power of the respondents. Rather, Clause (iv) of Sub-Rule (3) of Rule 13 of the rules framed under the Army Act, 1950, empowers the respondents to discharged the Recruit where he is found unlikely to become an efficient soldier. On behalf of the petitioner a confusion is being created as to fitness for enrolment with the fitness of being efficient soldier. In the opinion of this Court the two are different, and fit for enrolment does not mean an ‘efficient soldier’. 7) For the reasons as discussed above, this Court does not find force in the writ petition, which is liable to be dismissed. The writ petition is dismissed. No order as to costs. (Prafulla C. Pant, J.) Dt.February 19, .2008 H.Negi