(1.) BY this petition under Article 227of the Constitution of India, the Petitioners seek to challenge the correctness, validity and properiety of the order dated 18.2.2000 passed in O.A No. 1207/89 (Mahendra Singh v. Commandant 11th Battallan); O.A. No. 3163/89 (Hemlal Thapa v. Commandant 11th Battalian); and O.A No. 82/93 (Pooran Bahadur v. Commandant 11th Bn.). This judgment shall dispose of W.P. No. 6117/2000, 6119/2000 and 6120/2000 as the above referred Original Applications were disposed of by the common order dated 18.2.2000. The employee in each of the case was employed by the Petitioners as a recruit and in accordance with Rule 37 of the Vishesh Sashastra Bal Niyam, 1973 they were required to pass certain trainings. As each of the Respondent/recruit could not pass within a period of nine months, the period was extended by six months in accordance with Rule 37 and as each of the employee could not acquire the required proficiency within the extended period, they were discharged from their services. Each of the employee being aggrieved by the order of discharge/termination issued on 18.2.2000, terminating their services w.e.f. 10.3.1989, filed Original Applications before the State Admintstrative Tribunal at Jabalpur.
(2.) IN support of their petition, each of the employee submitted that the said Rule 37 which required the employee to attain the required proficiency within the extended period has been differently interpreted by different Commandants and the I.G.P. and as in case of some of the recruits a third opportunity was provided to them, these recruits could not be treated differently, they could not be discharged from service and they were also entitled to third opportunity. In support of their contention they filed the copy of the order dated 20.7.95 passed by I.G., Special Armed Force, Bhilai setting aside the order passed by the Commandant of 33rd Battalion. The present Petitioners in their capacity as the Respondents submitted before the Tribunal that in accordance with Rule 37 of M.P. Vishesh Sashastra Bal Niyam, 1973 if the recruit does not acquired the required proficiency within nine months or the extended period, then authority is entitled to remove him from service or discharge him. They accordingly prayed to the Tribunal that the petitions filed by the recruits deserved dismissal. The Tribunal after hearing the parties came to the conclustion that in case of some of the employees/recruits Rule 37 has been differently interpreted and certain persons were retained in service even when they could not attain the required Proficiency in second attempt, therefore, the Petitioners were also entitled to be retained in service. Granting their petitions, the Tribunal directed that the said recruits be taken back on duty, but looking to the long break in service and in the peculiar circumstances of the case, the matter relating to grant of back wages shall be dealt with under the discretion of the Respondents/present Petitioners, but each of the recruit shall be deemed to be continuous in service for other service benefits. Being aggrieved by the said order passed in favour of each of the recruit, the Petitioners i.e. Commandant of 11th Battalion and two others have filed these petitions. Dr. N.K. Shukla, learned Dy. Advocate General, referring to Rules 37 and 38 of 1973 Rules submits that as Rule 37 does not permit any third opportunity in favour of the unsuccessful recruit, in each of the case the recruit was rightly discharged from service. Referring to Rule 38 he submits that a Constable on passing the recruit's test shall be appointed to an active company and no person who has not served for a period of 12 months in an active company shall be eligible for any appointment in special section such as Stores, Armourers. According to him, if Rule 37 does not talk of any third opportunity then grant of an opportunity in favour of some other recriuts would not clothe the recruit with such a right nor would confer jurisdiction upon the Tribunal to interfere with the order of discharge.
(3.) ON the other hand, Shri Prashant Mishra learned Counsel for the recruits submits that Rule 37 if is read in its true perspective would clearly indicate that it is not necessary for the Commandant/appointing authority to discharge the man from service because the language employed in Rule 37 is that 'if the recruit again fails to pass the recruit's test at the end of the extended period he 'may be' discharged by the Commandant.' Taking shelter under the words "he may be discharged", learned Counsel for the recruits submits that it is not mandatory upon the Commandant to discharge the recruit and it would be within the discretion of the Commandant to discharge or retain the recruit in service. The Madhya Pradesh Vishesh Sashastra Bal Adhiniyam, 1968 (No. 29 of 1968) received the assent of the Governor on the 25th November, 1968, This Act provides for the constitution and regulation of the Special Armed Force in the State of Madhya Pradesh, Section 3 of 1968 Act provides for constitution of the Special Armed Force. Sub-section (2) of Section 3 provides that S.A.F. (Special Armed Force) shall be constituted of such personal and maintained in such manner as may be prescribed. According to Section 4 of the Act, the superintendence, control and administration of the Special Armed Force shall, in accordance with the provisions of the Act and any Rules made thereunder vest in the Inspector General and Assistant Inspector General as the State Government may authorise in this behalf. Section 27 of the Act confers power upon the State Government to make rules for carrying out the purpose of the Act. Sub-section (2) of Section 27 provides that in particular and without prejudice to the generality of the forgoing provisions such rules may provide for all or any of the matters referred in Sub-section (2). Section 27 (2), Clause (c) refers to recruitment, organisation, calssification and discipline of members of the subordinate ranks.