By The Tribunal(Lt Gen Susheel Gupta)
1. The applicant, Ex Rect/Clk Mangi Lal has filed this Original Application praying for quashing of his discharge order and for reinstatement in service.
2. Brief facts of the case are that the applicant was enrolled as a Clerk in the Army on 16.9.2009 and was undergoing training at Artillery Centre, Hyderabad. Whilst undergoing his Basic Military Training, he was subjected to a Proficiency Aptitude Test in the 10th week of training. It is mandatory for all the recruit Clerks to pass this test with minimum percentage of 40% before he is allowed to continue the training for a clerk. The applicant along with 10 other recruit clerks had failed in the above test and as per existing Rules, was offered the option for change of trade to Soldier General Duty or Soldier Tradesman, for which, he was made to apply and he did so. Whilst seven of the clerks, who had failed in the Proficiency Aptitude Test, were adjusted against the vacancies in other trades, the applicant along with three more Recruit Clerks, who belonged to State of Rajasthan, were not adjusted in any other Trade due to there being no vacancies of any other trade from State of Rajasthan. Thus, they were discharged from service under Item IV of Table annexed to Rule 13(3) of the Army Rules, 1954 after giving a show cause notice.
3. In his written submissions, the applicant has stated that no doubt, he had failed in the Proficiency Aptitude Test, he could well have been adjusted in any other trade. Since he had completed his Basic Military Training, he was not adjusted primarily because he was from the State of Rajasthan and not because, he was unlikely to become an efficient soldier. Thus, there was discrimination against the applicant vis-Ã -vis the others who belonged to the State other than Rajasthan. Since he had completed the Basic Military Training, he should have been adjusted in any other vacancy in the Army.
4. The non-applicants, whilst agreeing with the basic facts, have stated that conduct of Proficiency Aptitude Test is a mandatory requirement to be held in the 10th week of training for all those recruits undergoing training for soldier clerk, in which, the recruit clerk is required to secure a minimum passing percentage of 40%. The applicant was given an opportunity and he failed to pass in the above test, which was held on 7.12.2009. The recruit clerks, who had passed the Proficiency Aptitude Test, were sent on recruit leave on completion of 20 weeks of Basic Military Training, whereas 11 recruit clerks, who had failed were retained in the Artillery Centre at Hyderabad primarily with a view to either adjust them in any other trades or discharge them, if no vacancies were available. These 11 recruit clerks were not made to undergo any further training other than the Basic Military Training, which they had attended prior to failing in Proficiency Aptitude Test for clerks. Whilst 7 of those recruit clerks, who had failed in the Proficiency Aptitude Test, were adjusted in other trades, as the vacancies for those were available, the applicant along with 3 others, who belonged to Rajasthan State, could not be adjusted as there was no vacancy available for his domicile State i.e. Rajasthan in Soldier General Duty or any other trade. The applicant along with 3 other recruit clerks, who had failed in the above test and who belonged to Rajasthan, for which, there was no vacancy available, were then served with a show cause notice on 31.3.2010 asking them reasons as to why their services should not be terminated in accordance with Item IV of Table annexed to Rule 13(3) of the Army Rules, 1954. The applicant filed his reply, in which, he requested for one more chance to pass in the Proficiency Aptitude Test. However, the same was not given to him as the Rules do not permit for giving of second chance to pass the Proficiency Aptitude Test.
5. We have heard Mr. Jog Singh, learned counsel for the applicant and Mr. Rajesh Jain assisted by Col Veerendra Mohan, Officer-in-charge(Legal), for the non-applicants and examined the record submitted.
6. Mr. Jog Singh, learned counsel for the applicant has stated that whilst the applicant had failed in the Proficiency Aptitude Test along with 10 other recruit Clerks, a noting-sheet had been moved for changing their trades and adjusting them within their Regiment. Scrutiny of the noting-sheet clearly reveals that the applicant along with three other recruit clerks, who were discharged, belonged to Rajasthan and were discharged solely on that ground and not on the ground that they were not likely to become an efficient soldier. No discharge certificate or order was given to the applicant, which is a mandatory requirement under Sec.23 of the Army Act. The learned counsel has also stated the fact that there were no vacancies from Rajasthan State is incorrect because recruitment rallies for Soldier General Duty were held in Jaisalmer and Sikar Districts of Rajasthan on 6.3.2010 and written test was held on 25.4.2010. Some candidates from this rally, who had cleared all the tests, were sent to Artillery Training Centre at Hyderabad. Thus, the contention that the applicant was discharged due to non-availability of vacancies, is not correct. Since the fresh recruits were being recruited against the vacancies of Rajasthan State, this opportunity could have been given to the applicant and he could have been adjusted against those vacancies and allowed to continue.
7. Col Veerendra Mohan, Officer-in-charge(Legal) appearing on behalf of the non-applicants, has stated that the applicant on failing in the Proficiency Aptitude Test was correctly dealt with as per the Policy laid down in the Army H.Qs. letter No.A/20335/1/GS/MT-5 dated 17.3.2003. Since no vacancies were available for change of trade from State of Rajasthan, the applicant could not be re-mustered into in other trade and hence, was discharged after following the laid down procedure. As regards the recruitment rally in Rajasthan, Col. Veerendra Mohan has pointed out that recruiting vacancies for various States are based on the guide-lines laid down by the Government of India to ensure that uniform opportunity is given to the youth of the entire Nation and also based on the vacancies created State-wise and due to retirements and casualties. The recruitment of personnel into the Army is a continuous process based on the vacancies allocated for a stipulated duration from the stipulated State for which the vacancies are worked out and sub-allotted to various States, for which, the recruitment is carried out by respective Recruiting Offices located in those States. Thus, the vacancies cannot be arbitrarily filled up or utilized by any other establishment like Artillery Centre, which would entail deprivation of that State of its rightful share of vacancies for enrolment into the Army. The vacancies are allotted to various Recruiting Agencies periodically to be filled up during scheduled time. The applicant failed to qualify Proficiency Aptitude Test for Soldier Clerk trade under which he was enrolled. There were no vacancies at that time in Soldier General Duty or Soldier Tradesmen Category for the State of Rajasthan under which the applicant could be absorbed by change of trade. Hence, there is no discrimination or injustice to the applicant.
8. The Rules regarding conduct of Proficiency Aptitude Test for recruit clerks in their 10th week of Basic Military Training is very clear. As per the said Rules, the test is to be conducted only once during training and recruit clerks, who do not qualify with minimum 40% marks in the test conducted during the 10th week of Basic Military Training are required to be re-mustered to some other category or discharged from service. It is evident that of the 11 recruit clerks, who failed in the Proficiency Aptitude Test, 7 were re-mustered into other category as the vacancies for the same were available at the Artillery Centre, Hyderabad. The applicant along with 3 others could not be adjusted as there were no vacancies in any other trade at that time for the State of Rajasthan, available with the Artillery Centre, Hyderabad. Thus, the applicant along with 3 others were discharged from service on the ground that they were unlikely to become an efficient soldiers as they had failed in the Proficiency Aptitude Test and not because they were from the State of Rajasthan. The non-applicants have rightly discharged the applicant from service since no alternative employment for him was available at that particular time.
9. In the light of the above, the instant Original Application fails and is hereby dismissed with no order as to costs.