MANAR RAM Vs. CHIEF OF THE ARMY STAFF

JUDGEMENT

(1.) .This appeal is directed against the order of the learned Single Judge dated May 12, 2000 in Civil Writ Petition No. 5867 of 1998 whereby the challenge to the termination of the services of the appellant was rejected by the learned Single Judge. The facts briefly stated are as follows;

(2.) On March 9, 1988, the appellant was enrolled as a Soldier in the Infantry Brigade of the Guards on being recruited by the Branch Recruiting Officer at Jhunjhunu in the State of Rajasthan. In the year 1989 it was discovered that the recruitment was wrongly made as the appellant was not a matriculate and therefore did not fulfill the eligibility criteria. While the case of the appellant is that he had not concealed his educational qualification as the certificate attached with the application for enrolment clearly showed that he was a non-matriculate, the case of the respondents is that the appellant had misrepresented to the Recruiting Officer, at the time of the recruitment, that he was a matriculate and the Recruiting Officer believing the representation of the appellant enrolled him as an Infantry Soldier. After discovery of the fact that the appellant was not a matriculate he was given an option for being remustered in the armed forces, in a lower category, as a Cook. Initially he was not averse to the aforesaid idea, but subsequently he expressed his unwillingness to be appointed as a Cook . In the circumstances , therefore, a notice was issued to the appellant on March 26, 1995 as to why administrative action should not be taken to discharge him from service under Army Rule 13, Item III(v) and section 20 of the Army Act. The show cause notice reads as follows :-

(3.) Before the learned single Judge the appellant denied the issuance of the show cause notice to him. But it was shown by the respondents that the appellant responded to the show cause notice on April 8, 1995 by submitting his reply thereto in Hindi, As per the case set up in the counter affidavit of the respondents to the writ petition, the Competent Authority, Commander 18 Armoured Brigade, after considering the reply of the appellant accorded sanction for his discharge by a communication dated June 9, 1995. Subsequently, in consonance with the communication dated June 9, 1995, discharge roll of the appellant was prepared and attested by two officers of the regiment but the appellant refused to sign the same. In August 1995, the appellant was transferred to Depot Company Brigade for finalisation of formalities relating to his discharge. On October 23, 1995, the appellant was finally struck off the strength of the Indian Army.