- (1.) This is an appeal filed by the appellant (writ petitioner) against the order dated 17.07.2009, passed by the learned Single Judge in writ petition No.761/2007. By the impugned order, learned Single Judge dismissed the writ petition and declined to grant any relief to the appellant (writ petitioner).
(2.) So, the question that arises for consideration in this appeal is, as to whether the learned Single Judge was justified in dismissing the writ petition of the appellant (writ petitioner). Having heard learned counsel for the parties and on perusal of the record of the case, we have formed an opinion to allow this appeal, set aside the impugned judgment/order and remand the case to the writ court for deciding the writ petition in accordance with law.
(3.) It is not necessary to take note of the fact in detail, nor record any finding on merits in this appeal for the reason, inter alia, that it will be now for the writ court to examine the case of the parties and then decide the issue on its merit in accordance with law. Suffice it to say, only those facts, which are necessary to appreciate the controversy and the reason for remanding the case to the writ court, need mention infra. Appellant (writ petitioner), at the relevant time, was in the service of Military. He was holding the rank of Ex. SWR. On 20 th December, 2002, he was served with one certificate, called "discharge certificate in lieu of IAFY-1964" (Annex.P4 to the writ petition.) This discharge certificate reads as under :- "DISCHARGE CERTIFICATE IN LIEU OF IAFY-1964 No.1073635 Rank Ex SWR Name HARI SINGH RAWAT of 87AR is dismissed from the service by the orders of the Commandant HQ Armoured Corps Centre and School under Army Act Section 20 (3) and Army Rule 17. His dismissal takes effect from 20 April, 2001. Cause of dismissal Deserter more than three years. Date of enrolment 30 Nov. 82 Office Seal Station: Ahmedabad. Sd/- Dated: 20 Dec 2002 Capt. Record Officer for OIC Records." It is this certificate which communicated to the writ petitioner of his dismissal from the services with retrospective effect from 20 th April, 2001. This gave rise to disputes between appellant and the respondent. The disputes were essentially in nature relating to his dismissal from service and his entitlement to claim pension etc. under the Rules. The appellant pursued his case departmentally, questioning the legality and propriety of his dismissal and award of pension etc. in the event of dismissal being upheld and finding that no relief was being to him, eventually filed the writ petition, out of which this intra court appeal arises and claimed following reliefs :- "(i) ..... ......... ......... .......... (ii) an appropriate writ, order or directions be passed to the Respondents to quash and set aside the orders passed by Respondent No.5 as mentioned in the Certificate of Discharge dated 20 Dec' 2002 (Ann/P/4); (iii) an appropriate writ, order or directions be passed to the Respondents to treat the petitioner as having been Discharged instead 'Dismissal' in terms of Army Rule 13 (3) (III) (v); (iv) To grant pension to the petitioner in terms of Rule 132 of the Pension Rules; (v) To grant all other retiral benefits to the petitioner as applicable including gratuity, etc. (vi) To grant arrears of pension w.e.f. The date of discharge till date with all consequential benefits.";