- (1.) D. K. Seth, J. By the notice dated 4-5-1989 (Annexure-1 to the writ petition) the petitioner was asked to show cause as to why his recruitment in Defence Security Corp. (herein-after referred to as DSC) should not be considered irregular on the ground that the petitioner having been dis charged compulsorily under Army Rule 13 (3) (HI) (V) who are ineligible for recruit ment m DSC. After considering the show cause the petitioner was discharged by an order dated 1-5-1984 (Annexure-6 to the writ petition ). The petitioner made a peti tion on 18-8-1989 as also on 5-10-1989 (An-nexure-7 to the petition) to the Chief of Army Staff, which was rejected by him vide order dated 24-11-1989 (Annexure-'8' to the writ petition) alongwith these two or ders the petitioner has also challenged the order dated 5-8-1988 by which the petitioner was discharged from Army under Rule 13 (3) of the said Rules, by means of present writ petition with the following prayers: " (i) to issue a writ, order or direction in the nature of mandamus directing the opposite par ties to produce the entire record of the case before this Hon'ble Court. (ii) to issue a writ, order or direction in the nature of writ of certiorari quashing the orders dated 5-8- 1988, 1-5-1989 and 24-11-1989 (An-nexures 6 and 8) respectively. (iii) to issue a writ, order or direction in the nature of writ of mandamus directing the respon dents to reinstate the petitioner as Sepoy in the 388 DSC Platoon, COD, Kanpur with all conse quential benefits from the date of discharge. (iv) to issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. (v) to award costs of this petition to petitioner. "
(2.) LT. Col. Sri Ashok Kumar (Retd.) learned counsel for the petitioner contends that the discharge of the petitioner by order dated 5-8-1988 from the Army under Rule 13 (3) (iii) (v) is void and should be ignored and the said discharge should be treated as discharge under Rule 13 (3) (iii) (iv) and, therefore, the petitioner cannot be discharge from DSC on the ground of his being discharged cornpulsorily from the Army under the said Rule. Secondly, the contends that the discharge from DSC was effected pursuant to Army Headquarter letter dated 27th May 1985 prescribing certain guidelines which cannot over-ride the Army Act, Rules and Regulations and, therefore termination of the petitioner from DSC is wholly without jurisdiction. He has also sought to impugn the validity of the said Army Headquarter letter dated 27th May 1985. He has also sought to make out a point that in the facts and circumstances of the case the petitioner could not have been dis charged from the Army under Rule 13 (3) (Hi) (v ). Thus he has supported the reliefs claimed in the writ petition. Sri Sushil Harkauli, learned counsel appearing on behalf of respondents, on the other hand contends that after haying ac cepted the order of discharge being the order dated 5-8-1988 and having joined D. S. C. , pursuant to such discharge the petitioner is estopped from challenging the order dated 5-8-1988 on the principle of estoppel. Secondly, he contends that the said order dated 5-8-1988 was open to chal lenge by means of appeal and otherwise as provided in the Army Act, Rules and Regulations framed thereunder. The petitioner having not challenged the same to the procedure prescribed it no more open to him to seek re-opening of the said order. He further contends that the order dated 5-8-1988 was passed under Rule 13 (iii) (v) in accordance with law after issuing ap propriate show cause notice on the basis of the petitioner's own admission of the char ges levelled against him, for which the said provision for discharge was invoked against him. He further contends that since the writ petition does not contain either any plead ing or ground or prayer questioning the validity of the Army Headquarter letter dated 27- 5-1985, the petitioner is not per mitted to challenge the same. So long the same is not challenged and remained opera tive the petitioner cannot question his dis charge from DSC on the ground that he was ineligible for recruitment and, as such he was discharged therefrom. In the course of argument Sri Ashok Kumar, learned counsel for the petitioner has taken a point that in order to discharge under Rule 13 (3) (iii) (v) of the Army Rules notice to show cause has to be issued by the Brig. In the present case the same having not been done the discharge is void and nullity.
(3.) SRI Harkauli, on the other hand con tends that the order dated 5-8-1988 was passed after it was approved by the Brig. Rule 13 (3) (III) (v) prescribes the authority having jurisdiction to discharge a Soldier of the category to which the petitioner belong-The giving of show cause notice is the procedure prescribed. But it is not necessary that show cause notice is to be signed or issued by the Brig, himself. The approval of discharge by the Brig and pass ing of the order by Brig, rectifies the defect, if there is any. Though according to him giving of show cause notice by the Brig, is not mandatory. SRI Harkauli, learned coun sel for the respondent has also relied on the counter-affidavit and various documents annexed with the same. S. A. Army Act in Chapter-IV deals with the condition of service providing in Section 18 that the service of "every person subject to the Army Act shall hold office during the pleasure of the President. A "person subject to the Army Act may be dismissed or removed from service by the Central Government, "according to the provisions of the Act, Rules and Regulations framed thereunder under Section 19. The Chief of Army Staff is also empowered to dismiss or remove from service a person subject to the Act other than the officer. The same power is also vested under sub-section (3) of Sec tion 20 in the Officer Commanding a Brigade or equivalent Command or any prescribed officer to dismiss or remove from service any person under this Command other than the officer or Junior commission officer. Sub-section (7) of Section 20 makes such exercise of power subject to the provisions contained in the Act, Rules and the Regulation, made thereunder. By reason of Section-22 any person subject to the Army Act may be retiree, released or discharged from service by such authority and in such a manner as may be prescribed. This is now Rule 13 of Army Rules have been incorporated prescribing the authorities empowered to authorise dis charge. Rule-13 prescribes that each of the authority prescribed in column-3 of the Table appended to the said rule shall be the competent authority to discharge from ser vice the person subject to the Act specified in column 1 thereof on the ground specified in Column-2. Under sub-rale (2) any person superior to the authority prescribed by means of sub-rule (1) may also exercise such power exercisable by such authority, men tioned in the table. Sub-rule (2-A) clarifies that such authority would also be empowered to discharge any person from ser vice either unconditionally or on fulfilment of certain specified conditions which are exercisable either by the Central Govern ment or by the Chief of Army Staff. Sub-rule, (3) while explaining the term 'com manding Officer specifies the 'officer Commanding Corps" or the department to which a person to be discharged, belongs with certain exceptions with which we are not concerned. Category (iii) deals with "persons enrolled under the Act who have been attested". Admittedly, the petitioner belonged to this category which is not in disptue. However such clauses as many as five have been provided in Category-III, each dealing with different ground of dis charge. The petitioner claims his discharge to be one under clause (iv) which specifies all cases of discharge in Column-2. Accord ing to the learned counsel for the petitioner the purported discharge under Category-Ill, Clause (v) can not be applied.;