Supreme Court of India
UNION OF INDIA AND ORS.versusDIPAK KUMAR SANTRA
- Citation
- 2009 INSC 728
- Decided
- 6 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
Discharge under Rule 13(3) of the Army Rules, 1954 is valid and the High Court lacked jurisdiction to interfere, so the writ petition is dismissed.
Summary
The case concerned Dipak Kumar Santra, who was discharged from the Indian Army after failing the clerks' proficiency and aptitude tests. He filed a writ petition challenging his discharge, arguing that the competent authority lacked power under Rule 13(3) of the Army Rules, 1954, and that the Calcutta High Court had no jurisdiction to entertain the petition. The Single Judge of the High Court dismissed the petition, holding that the discharge was authorized by Rule 13(3) and that the court was outside its jurisdiction. On appeal, the Division Bench attempted to set aside the discharge by ordering the petitioner’s appointment to a vacancy, but the Supreme Court held that Rule 13(3) squarely applied and the High Court could not override it. Consequently, the Supreme Court allowed the appeal, dismissed the writ petition, and affirmed the validity of the discharge.
Issues considered
- Whether Rule 13(3) of the Army Rules, 1954 authorises discharge of a recruit who fails proficiency tests.
- Whether the Calcutta High Court had jurisdiction to entertain a writ petition challenging such discharge.
- Whether a Division Bench can set aside a discharge under the Army Rules and order appointment to a vacancy.
Legislation cited
- Army Rules, 1954s. Rule 13(3)
Subjects
dischargeArmy Rulesservice lawjurisdictionwrit petitionmilitary recruitmentefficiency of soldier
Judgment
_,'
[2009] 8 S.C.R. 281
....;
UNION OF INDIA AND ORS. A
v.
DIPAK KUMAR SANTRA
(Civil Appeal No. 8535 of 2002)
MAY 06, 2009
B
~
[DR. ARIJIT PASAYAT AND ASOK KUMAR
\
i
GANGULY, JJ.]
'
Army Rules, 1954 - r. 13 - Discharge under - On the
ground that the employee concerned was not likely to become c
efficient soldier - Writ petition - Dismissal of by Single Judge
of High Court on the ground that the competent authority had
authority to discharge u/r. 13 and that the High Court lacked
'T jurisdiction to entertain the petition - Division Bench of High
Court held that the employee could be appointed on the D
available vacancy - On appeal, held: Since r. 13 is applicable
to the facts of the case, order of Division Bench is not
sustainable - Service Law - Discharge.
., CIVIL APPELLATE JURISDICTION : Civil Appeal No .
E
.,;' 8535 of 2002 .
l
t
l From the JudgmenUOrder dated 22.1.2001 of the High
Court of Calcutta in MAT No. 653 of 1998.
B.V. Balaram Das for the Appellant. F
~
S.K. Bhattacharya for the Respondent.
The Judgment of the Court was delivered by
,. DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is G
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
281 H
282 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 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
B 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
c 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
D
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
E 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
7
relief. The learned counsel for the respondent submitted that
F 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
G 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
H
UNION OF INDIA AND ORS. v. DIPAK KUMAR 283
SANTRA [DR. ARIJIT PASAYAT, J.]
Rules, which has application to the facts of the case. A
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 8
service person subject to the Act specified in column 1
thereof on the grounds specified in column 2.
T
(3) In this table "commanding officer" means the officer C
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 D
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.
E
Category Grounds of Competent Manner of
discharge authority to of discharge
authorise
discharge
1 2 3 4 F
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 G
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
284 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 1 2 3 4
satisfied as to the
desirability of
sanctioning the
application that the
B strength of the unit
will not hereby be
unduly reduced.
Recruits who are
considered "'
unlikely to become
efficient soldiers
c will be dealt with
under this item.
4. The High Court's judgment is clearly unsupportable and
D the writ petition filed by the respondent shall be treated as
dismissed. The appeal is allowed. No costs.
K.K.T. Appeal allowed.
1
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