DBSAW NO.989/08. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T D.B. CIVIL SPECIAL APPEAL (WRIT) NO.989/2008. IN S.B. CIVIL WRIT PETITION NO.3066/2002. Gajendra Singh Shekhawat Vs. Union of India and ors. Date of order:- May 22, 2008. PRESENT HON'BLE THE CHIEF JUSTICE SHRI NARAYAN ROY HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Shri Ashok Gaur and Shri Akbar Khan for the appellant. ***** BY THE COURT:- This appeal is directed against the judgment of the learned Single Judge dated 4/5/2006 whereby writ petition of the appellant filed against the movement order dated 15/2/2002, his withdrawal order from Officers Training Institute for proceeding to home dated 1/3/2002, was dismissed. 2) The appellant was selected by the Union Service Public Service Commission in the cadre of Gentleman Cadet in Indian Army. His training consisted of two terms. While the petitioner completed the training of first term, he was declared fail in second DBSAW NO.989/08. 2 term in (i) Drill and (ii) Current Affairs and International Relations. He was therefore relegated to the next batch on 31/8/2001 and was again asked to complete the second term. This time, it is contended that he suffered fracture and remained hospitalized and proceeded on leave. Ultimately, petitioner attempted second term but he again failed in second term in final year assessment test and also in one General Affairs subject. Re-test was again held for Drill & ADPS. Even in the third attempt, he was rated as a border line case, having been cleared only by one out of three assessors. 3) Learned Single Judge upon consideration of all the aforesaid aspects of the matter, dismissed the writ petition. 4) Learned counsel for the appellant has argued that the appellant suffered fracture of left upper 1/3rd Tibia on account of which, he remained hospitalized and thereafter he proceeded on sick leave for three weeks. He was awarded low medical category by medical board on 3/12/2001 and advised not to engage in long walk/running/jogging. Subsequently, the medical board placed him under medical category SI, HI A(3), T4, RI and advised him not to engage in long walk/running/jogging. When he was further subjected to medical examination, the medical board declared appellant fit on 19/1/2002. It was submitted that during all this period, appellant was physically not DBSAW NO.989/08. 3 fit and he could not clear the test of Drill and ADPS held on 8/12/2001, 12/1/2002 and 16/1/2002. Learned counsel submitted that respondents had pre-decided to issue his withdrawal of orders as would be evident from the fact that his movement order was singed on 15/2/2002 whereas withdrawal order was issued on 21/2/2002. Withdrawal of candidature from the academy can be made only on disciplinary ground on failure to achieve minimum requisite laid down standards but not for inability to achieve desired standards in Drilling & ADPS. Withdrawal of the petitioner from academy was therefore wholly arbitrary, unreasonable and contrary to clauses 28, 29 and 30 of the Instructions for Training. 5) Having heard learned counsel for the appellant and perused the impugned judgment as also the material forming part of the record, we find that the respondents in their counter affidavit have clearly stated that appellant initially joined the short service condition (NT-17) 29/10/2000 and was relegated to SSC-73 course and he failed in one General Awareness subject (Current Affairs & International Relations) thereafter in Drill in second term final assessment tests as also was rated having low in essential qualities. Further when, he was relegated, he joined second term SSC (NT)-73 course and that time also he failed in second final assessment test and one subject of General Affairs DBSAW NO.989/08. 4 subject (ADPS Practical) when final re-test was held on 21/2/2002. The appellant was then declared but by the Service Selection Board for undergoing training in the third attempt. Even in third attempt, he was rated as a border line case having been cleared so by one out of total three assessors. A chart prepared by the respondent extracts of which have been reproduced in the counter affidavit, indicates that he had always been rated a very poor cadet. Respondents have submitted that the appellant remained weak in academic, military and physical training subjects as also sloppy in his bearing, turnout and drill movements. He was awarded punishments on number of occasions. He was counseled by his Platoon, Company and Battalion Commander, a number of times and was given various relegation warnings from members of the faculty for failing to pass in his tests. Faculty of both the Training Battalions in which he stayed commented unfavourably against him. Inspite of all these counseling, warnings, advice and guidance, the approach and behaviour of the appellant continued to be lackadaisical. 6) In view of the facts as aforesaid and categorical provisions in relevant administrative instructions issued by the Army Headquarters regarding training whereunder not only relegation is provided, provision of withdrawal has also been made, action of the respondents in initially relegating the appellant DBSAW NO.989/08. 5 to the next short service commission and thereafter withdrawing him from the Academy, cannot be said to be unjustified. Moreover, the respondents have decided not to insist on recoveries and allowances amounting to Rs.3,46,972/- paid to the appellant on humanitarian considerations which they could do as per para 4 of the bond submitted by him the time of joining. 7) In our considered view, therefore, the learned Single Judge was justified in dismissing the writ petition. We do not find any merit in this appeal. Appeal is accordingly dismissed. (MOHAMMAD RAFIQ), J. (NARAYAN ROY), CJ. anil