UNION OF INDIA Vs. DIPAK KUMAR SANTRA

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment of a Division Bench of the Calcutta High Court allowing the appeal MAT No. 653 of 1998. In said appeal challenge was to the order passed by the learned single Judge of the High Court dated 4.12.1997 whereby the writ petition filed by the present respondent was dismissed. The writ petitioner had.challenged the order passed by the Army authorities discharging the writ petitioner from service purportedly under Rule 13(3) of the Army Rules, 1954 (in short The Rules'). The respondent was discharged from the service on the ground that he had failed twice in the clerks' proficiency and aptitude test and for that reason he could not be re-mustered on account of absence of any vacancy in the post of store keeper or any trade. Learned single Judge held that in view of the Rule 13 the competent authority is entitled to discharge the present respondent who was not considered likely to become efficient soldier. It was also noticed that the cause of action for the writ petition arose wholly outside the jurisdiction of the High Court. The writ petitioner was, therefore, dismissed by the impugned order, Division Bench of the High Court held that there was a vacancy available and the writ petitioner can be appointed against the vacancy if such vacancy is released for his appointment. The order was directed not be treated as precedent.

(2.) LEARNED counsel for the appellant submitted that in view of the findings of the learned single Judge that Rule 13(2) of the Rules clearly ruled out the relief claimed by writ petitioner in addition to the issue of jurisdiction of Calcutta High Court to deal with matter, the Division Bench could not have granted relief. The learned counsel for the respondent submitted that on the peculiar facts of the case, the Division Bench of the High Court was justified in its view.

(3.) THE High Court's judgment is clearly unsupportable and the writ petition filed by the respondent shall be treated as dismissed. THE appeal is allowed. No costs. Appeal allowed.