P.K. Mohanty, J.
1. The petitioner assails the order of discharge from Army service and prays for a direction to absorb him in service forthwith.
2. Briefly stated, the petitioner's case is that, he is a Non-Matric, had applied for appointment as a Soldier (G.D) in the Army, he was called for screening test/interview which he attended on 13.8.1997. The petitioner having been found suitable, got selected and enrolled as a Soldier (S.H.G.D.) and was sent for training to A.O.C. Centre, Secunderabad in the State of Andhra Pradesh. He was given training in general duty, trade and also under-went physical training and other exercises. He was allowed to draw a basic pay of Rs. 2440/-. Petitioner claims that he completed the training for the post of Soldier successfully in the month of November, 1998 in opposite party No. 2's Training Centre and was assigned with Identity Card bearing Army No. 6939820-K, Trade-SHGD with Rank-Soldier. However, when the petitioner was awaiting for a posting order, he was shocked to receive a movement order dated 17.11.1998 from the Captain (opp. party No; 3) discharging him from Army service under Rule 13(3) IV of the Army Rules. A copy of the discharge order has been annexed as Annexure-6. The petitioner made a representation to Opp. Party No. 3 to re-consider the order of discharge, but no action was taken thereon. According to the petitioner, the order of discharge is illegal, arbitrary and has been passed by an authority lacking jurisdiction in terms of the Army Act.
3. The opposite parties have filed a counter affidavit denying the allegations and the claim made in the writ petition. It is the specific stand of the opposite parties that the petitioner during his training, was indisciplined, arrogant and disinterested in training. He had the tendency to remain absent from parades. After undergoing basic military training while he was undergoing trade training, he was given ample opportunity to improve himself but he continued to be so. Such an individual was found to be a burden to the disciplined organization like army and against its interest. He was, therefore, discharged, while as a trainee under Rule 13(3)IV of the Army Rules. Petitioner's claim that, he had made a representation against the order of discharge, has been disputed and it is stated that they had received an unsigned typed letter for reconsideration of the discharge order but no action was taken thereon because it could not be ascertained as to whether the petitioner himself had submitted the letter. It is emphatically stated in the counter that the petitioner has not completed one phase of the training and was undergoing trade training when he was discharged. It is averred that the movement order issued to the petitioner clearly mentions the cause of discharge as being unlikely to become an efficient soldier. The petitioner was marched upto Commandant, ACC Centre on the laid down forum and he was interviewed by the Commandant before signing the discharge order and therefore, the plea that the petitioner was not given a chance of hearing, has been denied. It is further stated that the pay of a recruit was Rs. 2440/- which the petitioner was getting but a trained soldier gets a pay of Rs. 2850/-. A copy of the order of the Senior Accounts Officer indicating the pay of trainees and recruits is annexed as Annexure-A/1 in support of such stand.
4. It appears from the movement order (Annexure-6) that the petitioner was issued with the movement order under Army Rules 13(3)IV being discharged from Army service since he was found 'Unlikely to become an efficient soldier'. The movement order has been signed by the Captain Coy Cdr. SHGD. Coy. Under Rule 13(3)IV of the Army Rules, each of the authorities specified in column 3 of the Table is the competent authority to discharge from service persons subject to the Act specified in column-1 thereof on the grounds specified in column-2.
5. In case a person enrolled under the Army Act but not attested, and recruits who are considered unlikely to become efficient soldiers are to be dealt with according to the last column of the table, which may be quoted hereunder.
TABLE
CategoryGround of DischargeCompetent authority to authorize dischargeManner of Discharge
1234
Person enrolled under the Act but not attestediv. All class of dischargeCommanding Officer or an officer commanding a Recruit Reception Camp, or a Recruiting, Technical Recruiting, Deputy Recruiting of Deputy Technical Recruiting Officer.
In the case of persons requesting to be discharged before fulfilling the conditions of either enrolment, the commanding officer will exercise this power only where he is satisfied as to the desirability of sanctioning the application and that the strength of the unit will not thereby be unduly reduced. Recruits who are considered unlikely to become efficient soldiers will be dealt with under this item
6. In view of the pleadings of the parties, the main question that needs consideration is as to whether the petitioner was a regular Army Soldier recruited under the Act or was a trainee recruit as claimed by the opposite parties. Section 13 of the Army Act, 1950 prescribes procedures before enrolling officer. Section 14 provides for mode of enrolment which contemplates that 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 service, and if such officer perceives no impediment, he shall sign and shall also cause such person to sign the enrolment paper, and such person shall thereupon be deemed to be enrolled. All persons selected to hold non-commissioned or acting non-commissioned rank and all other persons subject to the Army Act as may be prescribed by the Central Government, shall have to be attested in terms of Section 16 of the Act. Section 17 prescribes the mode of attestation. Under Sub-Section (1) of Section 17, when a person who is to be attested, is reported fit for duty or has completed the prescribed period of probation, on oath or affirmation shall be administered to him in the prescribed from by his commanding officer in front of this corps or such portion thereof or such members of Department as may be present, or by any other prescribed person. Sub-Section 2 of Section 17 requires that the form of oath or affirmation shall contain a promise that the person to be attested will bear true allegiance to the Constitution of India as by law established and that he will serve in the Regular Army and to wherever he is required to and obey the commands of any officer set over him even to his peril. Section 22 of the Act prescribes retirement, release or discharge. Under this provision, any person subject to the Act may be retired, released or discharged from the service by such authority and in such manner as may be prescribed. Rule 8 of the Army Rules requires all combatants and other enrolled persons who may be selected to hold noncommissioned or acting non-commissioned rank, shall when reported fit for duty, be attested in the manner provided in Section 17 of the Act. Any person subject to the Act may be retired, released or discharged from service by such authority and in such as may be prescribed. Section 23, however, requires that any person who is so removed, discharged, retired or released from service shall be furnished by his commanding officer with a certificate setting forth the authority terminating his service the cause of termination and full period of his service in regular Army.
7. In view of the aforesaid provisions of law, it is clear that a person enrolled or recruited in the Army service needs to be attested under Section 16 of the Act. The question of attestation comes after one has completed the prescribed period of probation or is reported fit for duty as contemplated under Section 17 of the Act read with Rule 8 of Army Rules. In such view of the matter, there cannot be any room for doubt that the petitioner was yet to be attested as a soldier, he having not completed his training and as such a trainee recruit. The letter in Annexure-A indicates that a non-Matric entrant enrolled in Army gets a stipend at the rate of Rs. 24407- per month and on completion of training, a trained soldier of SHOD trade would receive pay in the scale of Rs. 2900/- - Rs. 3725A' from 1.1.1996 to 9.10.1997.
8. The petitioner while under training was found indisciplined, arrogant and disinterested in the training and remained absent from parades and as such, was found by the Officer Commanding that he would not make a good soldier in terms of Clause-13(3)IV of the Army Rules discussed earlier. The petitioner in his rejoinder affidavit has admitted that he was not allowed to take the classroom test and even though his training mates have taken oath, he was deprived of such oath.
9. Thus, the petitioner, while still under training was found indisciplined, arrogant and disinterested in training and for such reason, the competent authority under the Rules, considered him 'Unlikely to become a good efficient soldier' and exercised power of discharge in terms of Rule 13(3)IV of the Army Rules. It is in affidavit of the opposite parties that, under the laid down forum, he was marched to the Commanding Officer and heard by him, whereafter the discharge order was signed and the petitioner also signed. Even though in the rejoinder, the petitioner has disputed the fact of his signing, but has not disputed or denied the averment in the counter that he was marched up to Commandant AOC Centre and was interviewed by the Commandant before the discharge order was passed. In such view of the matter; the submission that he was not afforded an opportunity of hearing cannot be accepted. Even otherwise also, an enrolled recruit, during training if found unsuitable for the hard and disciplined service as a soldier by the Commandant for good reasons on observations, the applicability of the rule of natural justice is not attracted. The provision of Rule 13(3)lV authorizes a competent authority to discharge an enrolled recruit trainee who is unlikely to make an efficient soldier. Such action cannot be termed illegal or arbitrary. The normal rules of procedures, applicable to the soldiers cannot be applied to the recruit trainees as contemplated under the provisions of Army Act or Rules framed thereunder. The discharge order was signed after the petitioner was heard and pursuant to the order of discharge, the movement order in Annexure-6 has been issued by the Coy Commander. A copy of the order of discharge has not been annexed, but however, it appears that the movement order (Annexure-6) is pursuant to the order of discharge in terms of Rule 13 and it has so been clearly mentioned therein.
10. In such view of the matter, the contention of the learned counsel that the Rules have not to be adhered to and that an authority not competent to discharge the petitioner has issued the order, cannot be accepted.
11. In any view of the matter, we do not find any merit in the writ application to interfere with the order of discharge in exercise of the powers under Article 226 of the constitution of India and accordingly, the writ application is dismissed. But in the circumstances, there shall be no order as to cost.
L. Mohapatra, J.
12. I agree.