Decided on October 31,1968

FRANCIS T J Appellant


- (1.) THESE two petitions raise a common question and are disposed of by this judgment.
(2.) THE petitioners were Junior commissioned officers in the Indian Army. Both of them have been discharged and the contentions specifically raised in the petitions are that under Regulation 165, said to be applicable to the petitioners, they were entitled to continue in service till they completed 28 years of service and that neither of them had completed 28 years of service when they were discharged. The petitioners were discharged pursuant to the decision embodied in Exs. P. 1 and P. 2 as surplus to requirements. It was decided as is seen from Ex. P. 1 that all persons above 50 years holding the rank of the junior commissioned officers should be discharged and there is a list appended to Ex. P. 2 in Original Petition No. 1903 mentioning the names of thirteen parsons as those to be retrenched. The petitioner in Original Petition No. 1903 is the second-named person there and the petitioner in Original Petition No. 1902 is the ninth-named person. It appears to me that by virtue of Section 22 of the Army Act, 1950, read with Rule 13 of the rules framed, the petitioners in these petitions can be discharged. There is no case that the discharge has been effected by any authority other than the authority mentioned in Rule 13. Section 22 runs thus: 22. Any person subject to this Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed. Rule 13 of the rules framed under Section 191 of the Army Act, 1960, empowers the authorities specified in Col. (3) of the table in Rule 13 to discharge persons specified in Col. (1) of the table. It is said that the petitioners have been discharged by the competent authority mentioned in Col. (3) of the table and that the discharge will fall under I (b) (iii) in Col. (2 ). It is not contended that the authority who had discharged the petitioners is not the authority mentioned in Col. (3) of the table. It was however suggested that all other classes of discharge mentioned in Col. (2) under I (b) (ii), will take in only cases of discharge for misconduct envisaged by Rule 14. This contention does not appear to me to be sound. Misconduct is treated as a specific and separate ground for discharge and provided for in Rule 14. Clause I (b) (iii) in Sch. II is a general provision for discharge and the discharge will not fall under the other clauses in that column. This, I think, must take in also a discharge for the reason that those discharged had become surplus to requirements. It cannot be urged that Col. (4) requiring notice has not been complied with. The petitioners did have notice and they did make representations and that the provision in Col. (4) does not appear to be mandatory because it speaks of notice being given whenever the circumstances of the case permitted.
(3.) IN the reply-affidavit filed by the petitioners, a further contention was raised that there has been discrimination in the matter of discharge; in that three of those mentioned in the list appended to Ex. P. 2, namely, 5, 8 and 11, have not been discharged. Though this point of discrimination had not been taken in the original petition, I called for further information to verify whether there has been any discrimination and an additional affidavit has now been filed on 28 instant of this month. Paragraph 3 of this affidavit states the circumstances and gives the reasons why the petitioners were discharged and discharge certificates issued and why those mentioned as 5, 8 and 11 in the list appended to Ex. P. 2 were not discharged. The authorities have acted under Rules 12 and 13 of the rules and it does not appear that there has been any case of discrimination. Due to certain unavoidable reason, it transpired that after the discharge of the petitioners and before the discharge of 5, 8 and 11 mentioned in the list appended to Ex. P. 2, it was decided to raise the strength of ASO establishment and that circumstances turned out to be favourable to those mentioned as Items 6, 8 and 11 in the list appended to Ex. p. 2 and has caused at least great disappointment to the petitioners. I do not think this disappointment can be redressed in proceedings under Article 226 of the Constitution. There is no specific challenge of Rules 12 and 13 or Section 22 of the Army Act and I do not think that I am called upon in this case to decide whether these provisions in the Act and the rules are for any reason invalid as violating the Constitution or otherwise. These have to be considered, if at all, only in other cases where it is specifically challenged.;

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