2009 (8 )  SCR 281 UNION OF INDIA AND ORS.

v. DIPAK KUMAR SANTRA

(Civil Appeal No. 8535 of 2002) MAY 06, 2009

[DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. 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 petitioner had challenged the  

order passed by the Army authorities discharging the writ petitioner  

from service purportedly under Rule 13(3) of the Army Rules, 1954  

(in short  ‘The Rules’).  The respondent was discharged from the  

service  on  the  ground  that  he  had  failed  twice  in  the  clerks'  

proficiency and aptitude test and for that reason he could not be  

re-mustered on account of absence of any vacancy in the post of  

store keeper or any trade. Learned Single Judge held that in view  

of the Rule 13 the competent authority is entitled to discharge the  

present  respondent  who  was  not  considered  likely  to  become  

efficient soldier. It was also noticed that the cause of action for the  

writ petition arose wholly outside the jurisdiction of the High Court.  

The  writ  petitioner  was,  therefore,  dismissed  by  the  impugned  

order,  Division  Bench  of  the  High  Court  held  that  there  was  a  

vacancy available and the writ petitioner can be appointed against

the vacancy if such vacancy is released for his appointment. The  

order was directed not be treated as precedent.

2. Learned counsel for the appellant submitted that in view of  

the findings of  the learned Single Judge that  Rule 13(2)  of  the  

Rules  clearly  ruled  out  the  relief  claimed  by  writ  petitioner  in  

addition to the issue of jurisdiction of Calcutta High Court to deal  

with matter, the Division Bench could not have granted relief. The  

learned counsel for the respondent submitted that on the peculiar  

facts  of  the  case,  the  Division  Bench  of  the  High  Court  was  

justified in its view.  

It is not in dispute that Rule 13(3) of the Rules clearly applied  

to the facts of the case. Reference has been made to the learned  

counsel for the appellants to the letter of the Army Headquarter,  

New Delhi laying down the procedure required to be followed in  

respect to individuals who fail in the clerks' proficiency and aptitude  

test while undergoing the basic military training. We need not go  

into the applicability of the letter referred to, in view of the clear  

stipulation in Rule 13 (3) of the Rules, which has application to the  

facts of the case.

3. 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

1 2 3 4

Persons IV. All classes Commanding In the case of enrolled of  discharge Officer of persons  under the Officer requesting Act 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  

satisfied as to the desirability of  sanctioning the  

application that the strength of the unit  will not hereby be  

unduly reduced. Recruits who are considered unlikely to  become efficient  soldiers  will  be dealt  with under this item.

4. The High Court’s judgment is clearly unsupportable and the  

writ petition filed by the respondent shall be treated as dismissed.  

The appeal is allowed. No costs.