The main legal point established in the judgment is the discretionary nature of administrative powers under Army Rule 13, distinct from the powers vested for convening court martial proceedings, and the inapplicability of Army Act, Section 43 and Section 122, and Regulations 465-A and 466 to the administrative action.

( 1 ) THIS writ petition is directed against the order dated 21st January, 2000 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 99, field Regiment C/o 56 APO on 5th August, 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 7th January, 2000 whereby the petitioner was called upon to show cause why his services should not be terminated on administrative grounds under the provisions of Army Rule 13 item (iii) (v ). 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 14th August, 2000 replied that he did not know how he had been declared as "bogus"; he had completed all rules of recruitment; completed all conditions of enrolment; on completion of training had been declared successful after qualifying requisite training test; 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 petitioner's counsel to Regulations 465-A and 466 of the Regulations for the army, 1987 Edn. , to contend that the petitioner having put in 4 years and

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