- (1.) BY means of this writ petition, moved under Article 226 of the Consti tution of India, the petitioner has sought writ in the nature of certiorari quashing the order dated 22nd March 2006, passed by respondent No. 2, discharg ing the petitioner from the Indian Army. The petitioner has further sought quash ing of the Army letter No. A / 20335 /i / GS / MT5 dated 17th March 2003. Lastly, the petitioner has sought his re instatement as Recruit/ Clerk (G. D.) of Training Battalion -1, Bombay Engineer Group and Centre, Kirkee, Pune -3,
(2.) HEARD learned counsel for. the parties and perused the affidavit, coun ter affidavit and rejoinder affidavit filed by the parties. The petitioner through Almora Branch Recruiting Office appeared for physical test on 19-11-2004, and qualified the same where after, he was medically examined on 20th Novem ber 2004, and found fit. On 28-11-2004, a written test was held for recruitment of Clerk (G. D.) in the Indian Army. Vide letter dated 5th January 2005, the Branch Recruiting Office in formed the petitioner that he has passed the entrance examination and he was required to complete certain formalities like filing the original edu cational qualification certificates and other certificates for verification. Petitioner's claim is that he was enrolled in the Indian Army on 12-03-2005, and was sent to Bombay Engineer Group and Centre, Kirkee, Pune -3 for training as Recruit / Clerk (G. D.) from Almora, where he joined the Centre on 14th March 2005. However, after completion of six months Basic Mili tary Training, a Proficiency Aptitude Test which was conducted during the training period, the petitioner was in formed that he had not qualified the same and vide impugned order dated 22nd March 2006, the petitioner was discharged from Army w. e. f. 31st March 2006. The petitioner has al leged in the writ petition that his dis charge from Army is illegal, as he could not have been discharged merely for the reason that he could not qualify the Proficiency Aptitude Test. In the counter affidavit, the re spondents have admitted that the pe titioner was recruited through Soldier Board, Almora against a vacancy of Clerk (G. D.) and was sent for training to Bombay Engineer Group and Cen tre, Kirkee for Basic Military Training. It is stated in the counter affidavit that the petitioner could not qualify the Proficiency Aptitude Test (herein after referred as PAT) and in terms of letter No. A/ 20335 II I GS / MT 5 dated 17th March 2003, the petitioner was liable to be discharged as there was no vacancy available for him for re-mustering. Defending the action under the Army Rules, 1954, it is stated in the counter affidavit that the petitioner obtained only 22 per cent marks in the PAT held on 11th June 2005, while the minimum marks re quired were 40 per cent. In the sup plementary counter affidavit filed on behalf of the respondents it is stated that the petitioner was discharged from service under Army Rule 13 (3) (iv) for he was 'unlikely to become an effi cient Soldier' as he failed in the PAT.
(3.) BEFORE further discussion, it is pertinent to mention here that Clause (iv) of Sub-Rule (3) of Rule 13 of the Army Rules, 1954, which empowers a Commanding Officer to discharge a Recruit enrolled under the Army Act but not attested, on certain grounds which includes 'recruits who are con sidered unlikely to become efficient soldiers'. Admittedly, the petitioner did not qualify the PAT conducted by the Centre where the petitioner was undergoing Basic Military Training. Annexure C. A.-1 to the counter affi davit is the copy of the instructions issued by the Directorate General Mili tary Training, Army Headquarters, New Delhi vide letter No. A/ 20335 /i / GS / MT 5 dated 17th March 2003, which provides that Recruit Clerks en rolled in the Army through Recruiting Organization and Regiment/training Centres are required to qualify sepa rate written test to assess their suit ability to be enrolled as Clerks. Clause (d) of Para-7 of said letter containing instructions further provides that those recruits who did not qualify the PAT should be re-mustered or disposed off as per existing instructions in the sub ject. In Para-20 of the counter affida vit it has been specifically stated that all the possibilities were explored to re-muster the petitioner in any other trade, but it was not possible as there was no vacancy. In view of Rule 9 read with Rule II and Rule 13 of the Army Rules, 1954 and the instructions contained in letter dated 17th March 2003, there appears no illegality in the impugned order dated 22nd of March 2006, whereby the petitioner was discharged w. e. f. 31-03-2006. Though, by amend ment, the petitioner has added a re lief in the writ petition that the in structions dated 17th March 2003 (Annexure C. A.-1 to the counter af fidavit) be declared illegal, but no ground whatsoever has been men tioned in the writ petition as to why said instructions can be said to be il legal. Learned counsel for the peti tioner drew attention of this Court to Section 15 of the Army Act, 1950, and submitted that the discharge of the petitioner is in violation of said Section. A plain reading of Section 15 makes it clear that it bars a Recruit from claiming discharge on the ground except the one admissible to him un-;