The judgment clarified the distinction between administrative action under Army Rule 13 and court martial proceedings, and emphasized the inapplicability of certain provisions of the Army Act and regulations to administrative actions under Rule 13.

REVA KHETRAPAL, J.

( 1 ) THIS writ petition is directed against the order dated 1st April, 2002 discharging the petitioner from Army service under the provisions of Army Rule 13 Item No. (iii) (v) of the table annexed to the said Army Rules.

( 2 ) THE facts in a nutshell are that the petitioner was enrolled in the regiment of Artillery on 22nd August, 1995 against Unit Headquarters Quota enrolment by the Artillery Centre, Nasik Road Camp. On completion of his basic military training at the Artillery Centre, Nasik Road Camp, he was posted to 197 fd Regt on 31st July, 1996. However, a case of malpractice in enrolment came to light in the year 1996. A court of inquiry was held to investigate the circumstances under which the alleged recruitment related malpractice took place in the Artillery Centre, Nasik Road Camp during the period 1994-1995. The general Officer Commanding, Maharashtra and Gujarat Area directed, vide para 7 (b) of his directions dated 7th July, 1997 that all cases of unauthorised recruitment/enrolment be examined and if necessary, services of such individuals be terminated administratively. Simultaneously, disciplinary proceedings against the persons responsible, being one Subedar head-clerk and two Hawaldar clerks were initiated by a General Court Martial. So far as the 12 persons who were allegedly recruited illegally and unauthorisedly were concerned, action was directed to be taken against them in terms of the provisions of Rule 13 (iii) (v) of the Army Rules.

( 3 ) A show cause notice was issued to the petitioner on 12th June, 2000 whereby the petitioner was called upon to show cause why his services should not be terminated by discharging/removing him under the provisions of Army Rule 13 item (iii) (v) as per para 5 of HQ Mandg Area letter No. 402609/arty/aq dated 30th October, 1999 and as per para 7 (b) of the directions of the General officer Commanding, Maharashtra and Gujarat Area. It was mentioned in the said show cause notice that as per the details regarding enrolment of the petitioner received from the Artillery Centre, Nasik Road Camp, his name was not included in the Unit Headquarters Enrolment Board of July, 1995. The petitioner on 17th august, 2000 replied that to the best of his knowledge, he had not resorted to any illegal means to get himself enrolled into the Army; that his since enrolment he had served the Army well and to the best of his ability; and requested that he be permitted to continue in the service considering his performance in the Unit. On consideration of the reply of the petitioner to the show cause notice issued to him and after he was granted a personal hearing by the Commanding Officer, the Competent Authority passed an order discharging the petitioner from service, which order is impugned in the present writ petition.

( 4 ) IN the course of hearing of the writ petition, it was submitted by learned counsel for the petitioner that the discharge of the petitioner by the army authorities was illegal as the said discharge was only a follow up of the general Court Martial of Lt. Col. I. R. Gapliney, a subedar head-clerk and a hawaldar clerk, Surinder Singh of the same Artillery Training Centre (Nasik), who were caught red handed in accepting bribes for enrolment and in view of their punishment, as an exemplary punishment all the 12 jawans of the same batch were discharged from service, who were not even called as accused or witnesses in the disciplinary case. It was further submitted by counsel for the petitioner that the discharge of the petitioner for fraudulent enrolment under section 43 of the Army Act was violative of Section 122 (iv) of the Army Act, which stipulates that no trial for fraudulent enrolment could be commenced if the person in question (not being an officer) has subsequent to the commission of the offence, served continuously in an exemplary manner for not less than 3 years with any portion of the regular Army. Our attention was also invited by the petiti