UNION OF INDIA AND ORS. versus DIPAK KUMAR SANTRA

Citation: [2009] 8 S.C.R. 281 · Decided: 06-05-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[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 
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 
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 . 
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 
• 
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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 
D 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 
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 
7 
deal with matter, the Division Bench could not have granted 
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 
G 
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 
H 
T 
UNION OF INDIA AND ORS. v. DIPAK KUMAR 
SANTRA [DR. ARIJIT PASAYAT, J.] 
283 
Rules, which has application to the facts of the case. 
3. Rule 13(3) so far as relevant reads as follows : 
A 
"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. 
(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 commissio

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