D. K. Seth, J. - (1.) The petitioner was en rolled in the Indian Army in the corp of Signal on 25th October, 1986 at Agra. He was discharged by an order dated 3-5-1988, on medical ground with effect from 31st May, 1983, which is Annexure-1 to the writ petition. After discharge the petitioner claimed for disability pension, which was refused by an order dated 15-2-1989 filed as Annexure-CAl to the counter-affidavit. In the writ petition it was alleged that one Narendra Prasad Yadav, Ex. No. 15357193, Ex-Recruit, discharged from the service, had been granted disability pension, the order where of is Annexure-4 to the writ petition. But the petitioner has been denied the grant of disability pension.
(2.) SRI G. D. Mukherji, learned counsel appearing on behalf of the petitioner con tends that the petitioner having been dis charged on medical ground which is at tributable to the Military service, the peti tioner is entitled to disability pension under Regulation 173 of the Pension Regulations Part-I, 1951. According to him in view of para-7 Clause (b) of Appendix-11 of the said Regulations unless a note is given at the time of acceptance of an individual in the service, all disability shall be deemed to have accrued during service with an exception that in cases where Medical Board opines with reasons that the disease could not be detected at the time of medical examination when he was accepted in service. In the present case there having been no note and there having been no such formation of opinion in view of the said provision the petitioner is entitled to disability pension. He also relies on some decisions to which I shall refer to at the appropriate stages. Sri AK. Sinha, learned counsel ap pearing on behalf of the respondents, on the other hand raises three objections to the grant of disability pension to the petitioner. The first ground raised by him is that the petitioner having been discharged on ac count of some disease which has been opined to be constitutional, there was no scope for attributing the disease to the Military service inas much as the constitu tional disease is a disease which had been present right from birth and, therefore, even if there is no note still then it can not be attributed to the Military service. The second contention raised by him is that the petitioner was recruited on 25-10-1986 but before he could be enrolled after comple tion of his training he was discharged. Therefore in view of clause (b) of Section 2 of the Army Act the petitioner is not subject to the Army Act and, therefore, he is not eligible for pension. His third contention was that the order refusing pension is ap pealable. Therefore, in view of existence of alternative remedy this writ petition is not maintainable. For the sake of convenience the second contention raised by Sri Sinha, learned counsel for the respondent is taken up as first. Section 2 or the Army Act prescribes a person who shall be subject to the Act. Clause (b) there of. f mentions that the person enrolled under the said Act are subject to the said Act. Now the enrolment is provided in Chapter-Ill of the said Act. The procedure is laid down in Section- 13. While mode and validity of enrolment is laid down in Sections 14 and 15 respectively. Sections 13, 14 and 15 of the said Act are reproduced below: "13. Procedure before enrolling officers.- Upon the appearance before the prescribed en rolling officer of any person desirous of being enrolled, the enrolling officer shall read and ex plain to him or cause to be read and explained to him in his presence the conditions of the service for which he is to be enrolled; and shall put to him the questions set for th in the prescribed form of enrolment and shall after having cautioned him that if he makes a false answer to any such ques tion he will be liable to punishment under this Act, record or cause to be recorded his answer to each such question. 14. Mode of enrolment-If after complying with the provisions of Section 13, the enrolling officer is satisfied that the person desirous of being enrolled fully understands the questions put to him and consents to the conditions of serviceand if such officer perceives no impediment he shall sign and shall also cause such person to sign the enrolment paperand such person shall there upon be deemed to be enrolled. 15. Validity of enrolment-Every person who has for the space of three months been in receipt of pay as a person enrolled under this Act and been borne on the rolls of any corps or depart ment shall be deemed to have been duly enrolled and shall not be entitled to claim his discharge on the ground of any irregularity or illegality in his enrolment or on any other ground whatsoever; and if any person, in receipt of such pay and borne on the rolls as aforesaid, claims his discharge before the expiry of three months from his enrol ment no such irregularity or illegality or other ground shall until he is discharged in pursuance of the claim, affect his position as an enrolled person under this Act or invalidate any proceeding Act or thing taken or done prior to his discharge. " A plain reading of Section 13 indicates that before the enrolment as soon as the person appears before the prescribed en rolling officer, the enrolling officer has cer tain duties to perform. He is to explain to the person desirous of enrolment, the con dition of the service and also asks some question which are set- for th in the prescribed form of enrolment with the cau tion that any mis-statement made may en tail punishment under the Act. In terms of Section 14 only after the procedure under Section 13 is complied with and the enroll ing officer is satisfied that the person desirous of enrolment has fully understood the questions put to him and had consented to the conditions of service and if he per ceives no impediment then only he will sign the enrolment paper and shall also called person serious of enrolment to sign the same. Only when the papers are signed such persons shall be deemed to be enrolled. Once such enrolment is made the same be comes valid as provided in Section 15 to the extent that with in the period of three months from the date of such enrolment the persons desirous of enrolment can seek dis charge without any restraint for discharge as provided in the Act. After the lapse of this period of three months discharge can be sought only with in the restriction provided in the Act and not otherwise. Even if there is any irregularity or illegality in the enrol ment, such irregularity or illegality will not invalidate the enrolment after lapse of the said period of three months though it could be invalidate on account of such irregularity or illegality before expiry of the said period of three months.
(3.) THE Act does not provide any dif ferent or separate provision for the recruit ment. Sri Smha, ha not been able to point out any such provision, Act, Rules or Regulations which governs 'recruitment' though Sri Sinha wanted to make a distinc tion between the 'recruitment' and 'enrolment'. According to him the recruit ment is different and distinguishable from the 'enrolment'. The contends that only after successful completion of training a person recruited in the Army is enrolled. But he has not been able to show anything either from the Act or from the Rules orregulation that there are any other provision which governs the procedure for recruitment. Neither he has been able to show anything that the enrolment follows successful training after the recruitment. He has also not been able to specify as to how the condition of service or training and dis cipline of the recruits are governed. On the other hand Sri Mukherji, learned counsel for the petitioner contends that the 'recruitment' and 'enrolment' are synonym. There is no distinction as has been sought to be made out by Sri Sinha. He further con tends that the recruitment is described as enrolment in the Act. There is no other provision which governs the recruitment. According to him the moment an individual is enrolled, which is ineffect a recruitment, he becomes subject to the Army Act, since only after enrolment the training follows. The conditions of service, discipline, train ing etc. of a person so enrolled are governed by the provisions of the Army Act. Relying on the decision in the case of Jamini Kanta v. Union of India and others, Sri Sinha contends that there is distinction between 'recruitment' and 'enrolment'. He relies on para 13 of the said judgment which is quoted below: "13. As regards the question as to on which date the plaintiff was really enrolled we do not think that there can be any serious doubt. At one stage a feeble attempt was made to make the date of recruitment to be the date of enrolment. The argument, however, cannot be sustained, as in various places in the Army Regulations to which reference was made by both the parties before us, A clear distinction is maintained as between recruitment and enrolment. There can be no doubt that in certain cases the date of recruitment is also the date of enrolment, but the enrolment is an act which is well defined under the Indian Army Act of 1911. Reference may be made to Sections 8 and 9 of that Act. The 1911 Act was in force at the time when the plaintiff was taken in military ser vice. It is only after the enrolling officer is satisfied about certain particulars and a form is signed by the person desirous of being enrolled, that the enrolling officer also signs the form and under Section 9 Indian Army Act, "the person shall then be deemed to be enrolled. " From the papers placed before us it is manifest that though the plaintiff had appeared before Mr. Uddin who was not the enrolment officer on 13-3-1942. Mr. Pandey, the enrolment officer who was away from the station on that date, signed the paper on 19-3-1942, after his return. The enrolment was, therefore, completed in terms of Section 9, Indian Army Act on 19-3- 1942. The learned subordinate Judge also came to the same conclusion though we need not refer to or express our agreement with all the reasons which had been given by him in reaching that conclusion. " In the said case the petitioner had ap peared for enrolment on 13-3-1942 before one Mr. Uddin who was not enrolment of ficer. The enrolment officer Mr. Pandey, who was away from the station on 13-3- 1942, signed the papers on 19-3-1942 after his return. Therefore, according to Section-9 of the Army Act, 1911 the enrolment was completed only when the form was signed by the enrolment officer. It was also a fact that in the said case. Jamini Kanta was recruited originally on 19-2-1942 and was enrolled on 20-2-1942 with a direction to join at Moghalsarai on 1-3-1942. But he was dis charged from Military Service at his own request on 12-3-1942 on the ground that he had been irregularly enrolled having been promised civilian fates of pay. On the next date, on 13-3-1942 he appeared at Asansol before Mr. Uddin. The enrolment form was filled in and signed by the enrolling officer Mr. Pandey on 19-3-1942. The fact recorded in the said case thus does not help Mr. Sinha on his contention that the enrolment some thing different from 'recruitment'. Even if filled up form is made one day or ap pearance is made on one day and the enrol ment officer signed on another day, there might be distinction of enrolment and recruitment prescribed on the different dates and normally recruitment and enrol ment are made on the same date or on dif ferent date. The enrolment is the initial entry into the service after which training follows. From the facts if does not follow that enrolment would effective only after completion of successful training. Unsuc cessful completion of training or other dis qualification may disentitled an individual from being retained in service or may be discharged, but it does not enoue that he would be treated to be not enrolled.;