IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1053 /2006 Reserved on: 17.11.2008 Decided on: 17.12. 2008 Prem Kumar Sharma. …Petitioner. Versus Union of India and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Hoshiar Kaushal, Advocate vice Mr. Bimal Gupta, Advocate. For the Respondents : Mr. M.A. Khan, Central Government Counsel. Rajiv Sharma, J. Brief facts necessary for the adjudication of this writ petition are that the petitioner was enrolled in the 1st Gorkha Rifles on 21.1.2004. While undertaking basic military training, Proficiency Aptitude Test (PAT) was conducted during 10th week. He could not pass the examination. Vide Annexure R-1 issued by the Army Headquarters dated 17.3.2003, the recruit/Clerks who did not qualify in Proficiency Aptitude Test were required to be re-mustered into any other category or disposed of. The case was taken up with the Army Headquarters by the 14 GR training 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 Centre for the change of his trade from soldier clerk to soldier tradesman (Mess Waiter). The competent authority accorded the sanction to change the trade of the petitioner to tradesman (Mess Waiter) against a vacancy already available vide letter dated 15.12.2004. The competent authority sent a communication to the 14 Gorkha Training Centre on 20.1.2005 seeking reasons why the eligibility criteria for change of trade was not looked into before seeking permission for change of trade. The 14 Gorkha Training Centre was directed to forward Common Entrance Examination (CEE) result, records of medical check-up and records of medical measurements of the petitioner. The competent authority informed the 14 GTC, Subathu on 14.2.2005 that change of trade in respect of the petitioner could not be considered being lacking height criteria. He was discharged on 27.5.2005 vide Annexure R-7. The text of letter dated 27.5.2005 reads thus: “1. Refer to your letter No. 625/Bns/RA-1 dt. 06 April, 2005. 2. The cases of No. 5049718H Clk Prem Kumar Sharma and 5351752A Rect. Clk G Kamal Raj have been exam. Both the indls could not qualify proficiency and Aptitude Test (PAT) for the clerical cadre. As per the existing policy, rect. Clks who do not qualify PAT, are reqd to change their trade to any other cat subject to meeting requisite criteria/discharged as per instrs in vogue. As per Army Headquarters letter No. 68523/14 GTC/Rtg. 5 (OR) (C) dated 14 Feb. 2005, Rect/Clk Prem Kumar Sharma cannot be considered for change of trade since he lacks height criteria. Therefore, he may be discharged from service under Army Rule 13 (3) (IV) under the power of Centre Comdt. 3. As far as Rect. Clk G. Kamal Raj is concerned, you may see the feasibility of changing his trade to any other cat. To which he meets the requisite criteria. In 3 case the indl. does not meet criteria, he may be discharged as stated above. 4. Encls. Recd. Vice your letter under ref. are returned herewith.” The petitioner made a representation on 16.5.2006. He was informed vide communication dated 13.7.2006 that his case was being examined and to process the case further, original discharge book issued to him was required alongwith two recent passport size photographs in civil dress for further necessary action. The reason assigned for discharge of the petitioner in Annexure P-5 is “at his own request” under items III (IV) rule 13 (3) AR 1954. However, in the discharge certificate filed by the respondents, the following reasons have been assigned: “Discharged from service under item 13 (3) (IV) of Army Rules 1954 vide AHQ letter No.A/39336/14 GR/Inf-6 (Pers) dt. 27 May 2005.” The respondent-Union of India was directed to file a supplementary affidavit vide order dated 15.10.2008. The reason assigned for the discharge of the petitioner in the supplementary affidavit is Army Rule 13 (3) IV (Unlikely to become an efficient soldier). Mr. Hoshiar Kaushal, Advocate appearing vice counsel for the petitioner has strenuously argued that the discharge of the petitioner from service with effect from 13.6.2005 is illegal and arbitrary, thus, violative of Article 14 of the Constitution of India. He also contended that the petitioner had never given any option to be discharged from Army as projected in the reply. He further contended that the case of the petitioner was sanctioned by the competent authority, but he has not been permitted to change his trade on the basis of the Policy Compendium on Recruiting (Junior Commissioner Officers/Other Ranks). His contention is that once the petitioner has been found suitable being recruited as recruit/clerk 4 being 165 cm in height, the rigours of the compendium of possessing 177 cm in height cannot be applied qua the petitioner. He lastly contended that there is variance in the manner in which the petitioner was discharged as per the discharge book and discharge certificate issued by the respondents. Mr. M.A. Khan, Central Government Counsel has supported the decision of the respondents whereby the petitioner has been discharged. Mr. Khan firstly contended that the wrong entry has been made in the discharge certificate issued to the petitioner and he was requested to return the same and thereafter the fresh entry was incorporated whereby the petitioner has been discharged being unlikely to become an efficient soldier. He further contended that though the case of the petitioner was sanctioned, however, he could not change his trade since he was lacking in basic criteria i.e. height. I have heard the learned counsel for the parties and perused the documents placed on record carefully. What emerges from the pleadings of the parties is that the petitioner was recruited on 21.6.2004. His suitability, standard in physical measurement, medical fitness etc. was looked into. It is also admitted case of the parties that the petitioner could not pass the Proficiency Aptitude Test conducted during 10th week of the training course. On the basis of the instructions issued by the competent authorities, Annexure R-1 dated 17.3.2003, he was permitted to change his trade. The competent authority had accorded the sanction to change his trade. Subsequently, the petitioner was informed on 14.2.2005 that he could not be permitted to change his trade being lacking in height criteria. Consequently, he was discharged vide letter dated 27.5.2005. He was 5 discharged as per contents of letter dated 27.5.2005 under Army Rule 13 (3) (IV). Rule 13 (3) (IV) reads thus: Category Grounds of discharge Competent authority to authorize discharge Manner of discharge 1 2 3 4 (iv) At his own request before fulfilling the conditions of his enrolment. Commanding Officer : The Commanding Officer will exercise this power only when he is satisfied as to the desirability of sanctioning the application and that the strength of the unit will not thereby be unduly reduced The case of the petitioner is that he had never submitted application for his discharge and this contention of the petitioner has not been refuted by the learned counsel appearing on behalf of the respondents. If the petitioner had never requested for his discharge as stipulated under rule 13 (3) (IV), he could not be discharged at all. The respondents have not dealt with the matter of the petitioner in a proficient manner. In earlier discharge i.e. Annexure P-5, as noticed above, he had been discharged “at his own request”. However, in Annexure R-13, the reason assigned is order dated 27.5.2005 (Annexure R-7) and in the supplementary affidavit, the reason assigned is unlikely to become an efficient soldier that too under rule 13 (3) (iv). Mr. M.A. Khan has drawn the attention of the Court to Annexure R-5 dated 25.2.2004 whereby recruits can be discharged from Army on the ground of unlikely to become an efficient soldier. This policy dated 25.2.2004 cannot supplement rule 13 of the Army Rule, 1954. In first discharge Annexure P-5, R-13 and supplementary affidavit, he has been discharged under rule 13 (3) (3) of the Army Rules, 1954. This rule could only apply if the petitioner had requested for his discharge. The petitioner, as taken note of in earlier part of the judgment, had never requested for his discharge. Even in Annexure 6 R-13, there is a reference to Army Rule 13 (3) (iv). In earlier part of the judgment, it has been taken note of by the Court that the petitioner had never made request for his discharge. Thus the discharge of the petitioner from Army vide Annexure R-7 is declared ultra vires and bad in law. The case of the petitioner is also required to be looked into from another angle. The authorities had sanctioned the change of trade of the petitioner to tradesman (Mess Waiter). The petitioner was recruited in the year 2004. His height at the time of recruitment was 166 cm, however, when the petitioner was to be permitted to change his trade, the height prescribed is 170 cm. The reasons have been assigned that on the basis of Policy Compendium on Recruiting (Junior Commissioned Officers/Other Ranks), the height prescribed is 170 cm. The wholesome principle of permitting the change in trade is to rehabilitate the candidate who has been recruited after fulfilling the criteria, but could not qualify any of the tests prescribed by the Army authority. In the present case the petitioner has been permitted to change the trade, however, only on the basis of height criteria, he has not been finally permitted to change the trade. The Court is of the firm opinion that once the petitioner with the height of 166 cm has been recruited and he has been given the basic training though he has not qualified the Proficiency Aptitude Test, the rigours of height i.e. 170 cm will not apply to him at the time of changing his trade. If the reasoning of the respondent is accepted in that eventuality, the logic of rehabilitation will be defeated. The Court has to take a pragmatic view that once the rehabilitation is provided, the same is taken to logical end and the same cannot be permitted to whittle down by taking a hyper technical view. 7 In view of the aforesaid reasoning, the writ petition is allowed. Annexure R-7 dated 27.5.2005 is quashed and set aside. The petitioner is held entitled to all the consequential benefits and if he opts for change in trade in that eventuality, the rigours of height shall not come in his way. There will, however, be no order as to costs. 17.12. 2008 (Rajiv Sharma ), J. *awasthi*