A. K. SIKRI, J. ( 1 ) PETITIONER was enrolled in the army as an Infantry man on 9/03/1988. He is matric fail. Minimum qualification for appointment to the post of infantry manis matriculation therefore in normal course, petitioner could not have beenappointed to this post as he did not fulfil the minimum educational qualificationrequired for the post of Infantry man. However, it is the case of the petitioner that atthe time of his recruitment, he had produced matric fail certificate and therefore thisfact was duly conveyed to the recruiting authority and notwithstanding this fact, thepetitioner was recruited as Infantry man. He served for 7 years and 228 days andthereafter on 22/10/1995 he was illegally discharged from service underitem lll (v), Rule 13 (3) of the Army Rules, 1954 as shown in the discharge bookpetitioner submitted statutory complaint dated 13th November, 1995 to Army rmy Chielwith copy to various other authorities but it did not evoke any response. Instead aneight paged, casually signatured discharge book without date was issued to thepetitioner. Petitioner sent legal notice dated 12/12/1996 which alsoremained unreplied. Reminders dated 7/08/1997 was sent. This also met thesame fate. Petitioner sent another reminder dated 11/08/1998. Again withsame result. At this stage, the present writ petition was filed seeking quashing ofdischarge order dated 22/10/1995 and also claiming reinstatement withconsequential benefits as well as damages. Petitioner also pressed for action to betaken by respondent no. 1 against the guilty who have discharged the petitioner fromservice and contends that this act is malafide and arbitrary. ( 2 ) THE main grounds on which the action is challenged are the following:- I. It is submitted that petitioner had no knowledge about the minimumqualification required for entering into service and as far as he is concernedhe had communicated to the respondents about his qualification. If hewas recruited even thereafter, then he could not have been dischargedafter 7 years and 228 days of service on the ground that he was not fulfillingthe required educational qualification for the said post. In any case,respondents were not able to show that minimum matriculation qualificationwas the mandatory requirement. II. Petitioner served for 7 years and 228 days and his service during thisperiod was exemplary as is clear from the discharge book issued to thepetitioner. In any case,respondents were not able to show that minimum matriculation qualificationwas the mandatory requirement. II. Petitioner served for 7 years and 228 days and his service during thisperiod was exemplary as is clear from the discharge book issued to thepetitioner. When petitioner was performing exemplary service, which hasbeen recorded even in the discharge book, the action of discharging himfrom service could not have been taken at this stage. III. Respondents did not carry out the statutory conditions laid in Armyrule 13 (3) ltem lll (v) which inter alia demands "notice to show cause andthe order of discharge to be issued by a Brigade or Sub-Area Commander,only". In this case, no such show cause notice was issued nor dischargeletter was issued by the Brigade/sub-Area Commander. Even discharge- book suffers from various illegalities. IV. Allegations that petitioner had fraudulently obtained the appointmentwas totally false moreover, petitioner was offered the lower post of cook andit was not understandable as to how respondents were still offering himthe lower post if he had committed an act of fraud. It is also submitted thatthe allegations of fraud in any case are false which is clear from the factthat matriculation fail certificate, copy of which is produced clearly showsthat at its back side it bears the signature of the petitioner s recruitingofficer who had examined it on 7/11/1987 and 4/01/1988and as respondents have admitted this document, it proves that there wasno concealment of fact by the petitioner. Therefore, according to thepetitioner it is the respondents who have taken fraudulent action againstthe petitioner as an after-thought and respondents are guilty of fraud andmade false statements even in the counter affidavit. ( 3 ) ON the other hand, submission of the respondents, as reflected from the counteraffidavit as well as reply and written submissions, are as follows:- A. The petitioner who was enrolled in service on 9/03/1998 in thebrigade of the Guards as an infantry soldier by the Branch Recruitingofficer at Jhunjhunu, in the state of Rajasthan had misrepresented hiseducational qualifications by declaring to the Recruitment officer that hehad passed Class X, whereas he had failed in his Class X examination. Theoriginal records produced by them in support of their submission and thephotocopies of the same were also handed over to the counsel for therespondents during the arguments. Theoriginal records produced by them in support of their submission and thephotocopies of the same were also handed over to the counsel for therespondents during the arguments. B. The enrollment sheet clearly shows that the recruitment officer basedon the representation of the petitioner had recorded that the petitioner hadpassed his Class X examination and that the forms are filled by therecruiting Officer based on oral representation of the persons desirousof getting recruited in the Armed Forces. At the time of recruitment thereare at least three to four hundred candidates present at the Recruitmentcentre. Therefore, the verification of the. representation made by acandidate is only made with the help of certificates issued by the schoolof the candidates at the time the record office prepares a check-list. C. In the instant case the check-list was prepared in March 1989whereupon the respondents discovered that the petitioner had failed inhis matriculation examination. This fact was brought to the notice of the petitioner who, vide his letter dated 19th November, 1991 gave hiswillingness to be considered for remustering in the Armed Forces in alower category, D. Respondents letter dated 12/03/1986 which stipulates aminimumqualification as Class X (i. e. matriculation) for candidates desirous of beingrecruited as infantry men. Those who are desirous of being recruited in alower category, such as, drivers and cooks, as is, evident upon perusal ofthe said letter, candidates need not be matriculates. At request of thepetitioner, since he was a good athlete, respondents processed his case forremustering in the Armed Forces in a lower category of a cook. The saidoption was given to the petitioner in October, 1992 and he was sent forremustering to the Brigade of the Guards Regimental Centre on 1 3/03/1993. Since the petitioner conveyed his unwillingness tor. beingrecruited in the lower category of a cook, a show cause notice dated 2 6/03/1995 was issued to the petitioner. The petitioner submitted hisreply to the show cause notice on 8/04/1995 and therefore his contentionthat he was not issued a show cause notice is patently false. E. The petitioner had firstly, misrepresented to the respondents hiseducational qualifications and secondly, when at his request his case wasprocessed by the respondents for remustering in the lower category of acook, he refused to give his willingness. Thus the respondents were leftwith no option but to discharge the petitioner from service. E. The petitioner had firstly, misrepresented to the respondents hiseducational qualifications and secondly, when at his request his case wasprocessed by the respondents for remustering in the lower category of acook, he refused to give his willingness. Thus the respondents were leftwith no option but to discharge the petitioner from service. The fact thatpetitioner had knowingly misrepresented his educational qualification isestablished by the fact that the training imparted to Infantry men isdifferent from that imparted to personnel in lower categories such as driversand cooks. It stretches credulity to believe that the petitioner would havebeen under a bonafide belief that the educational qualification for aninfantry men was not that which was stipulated i. e. that the candidatesshould have passed Class X, as all such personnel in his category had thesame minimum qualification. F. Petitioner s unwillingness to remuster in the lower category wassingularly unwarranted as not only was his case for remustering wasprocessed based on his letter dated 19/11/1991 but a similarundertaking was given by the petitioner at the time of recruitment vide letter/undertaking dated nil, at the time of his recruitment. ( 4 ) IT is thus submitted by the respondents that their action of discharging thepetitioner from service is bonafide, fair, just, reasonable and equitable. The refusaof the petitioner to remuster impelled the respondents to discharge him fromservice by the competent authority i. e. Commander 18 Armed Brigade vide hiscommunication dated 9/06/1995 who accorded his sanction to discharge thepetitioner from service after considering his reply. Since the petitioner refusedto sign his discharge papers the same was attested by two officers of the Regimentthe petitioner thereupon was despatched to the Depot Company Brigade of theguards in August, 1995 for completion of formalities connected with his dischargepetitioner s name was figally struck off from the strength of the Indian Army of 23/10/1995. Respondents thus complied with Army Rule 13 (3) ltemlll (v)ildischarging the petitioner from service. The Commander 18 Armed Brigade wasthe appropriate authority to sanction the discharge of the petitioner from service. ( 5 ) THE respondents have further contended that assuming without admitting thethe petitioner had not misrepresented his educational qualification and a mistakwas made regarding his educational qualification at the time of recruitment evethen in law there can be no estoppel against them from discharging thepetitioner from service if he fails to meet the stipulated educational qualification forrecruitment in service. ( 5 ) THE respondents have further contended that assuming without admitting thethe petitioner had not misrepresented his educational qualification and a mistakwas made regarding his educational qualification at the time of recruitment evethen in law there can be no estoppel against them from discharging thepetitioner from service if he fails to meet the stipulated educational qualification forrecruitment in service. The respondents submitted that it is well settled that notvested right is created infavour of a personnel if his intial employment in servicis based on a mistake, fraud or misrepresentation, In this reqard. therespondent relied upon the following cases:- I. Dr. Ashok Kumar Maheshwari Vs. State of U. P. and anotherreported in 1998 (2) SCC 502 II. Smt. Ravinder Sharma and another Vs. State of Punjab and othersreported in JT 1994 (6) 531 (SC ). III. Union of Indian Vs. C. Devan reported in 1995 Supp. 4 SCC 101. ( 6 ) LET us first examine as to whether the matriculation qualification as minimumqualification is the requirement for enrolment in the army as an infantry man . Respondent, in this connection, has relied upon letter dated 12/03/1986 as perwhich minimum qualification of class X is prescribed for candidates desirous ofbeing recruited as infantry man. This fact is not disputed by the petitioner. Petitioner only states that it is not mandatory requirement. However, I am notinclined to accept the submission of the petitioner that the qualification laid downeven in the aforesaid letter is not mandatory. It is well established principle thatin the absence of statutory rules, qualifications for appointment to the post can beprescribed by means of administrative instructions and the respondents aresupposed to adhere to the norms laid down in the aforesaid letter to recruitpersons. ( 7 ) IN the enrolment sheet it has been recorded that petitioner had passed hisclass X examination and on that basis he was enrolled as an infantry man therefore one thing is clear namely that the petitioner was enrolled as infantryman only because of the statement that he had passed class X examination. Thecontention of the petitioner is that he did not make any misrepresentation andinfact he had given the certificate at the time of enrolment which clearly disclosethat petitioner had passed IX standard (i. e. Xth fail ). Thecontention of the petitioner is that he did not make any misrepresentation andinfact he had given the certificate at the time of enrolment which clearly disclosethat petitioner had passed IX standard (i. e. Xth fail ). On the other hand, thesubmission of respondent is that it is the petitioner who misrepresented andgot it recorded in the enrolment sheet that he had passed class Xth examination. The respondent have also explained that at any given time, at the time of recruitmentthere are atleast 300-400 candidates present at the recruitment centres andtherefore verification of the representations made by the candidate is only madewith the help of certificate issued by the School of the candidate at the time recordoffice prepares the checked list. Therefore, the statement of the petitioner at thetime of enrolment was not checked as check list was prepared in March 1989 onlyand at that time respondent discovered that the petitioner was not fulfilling therequisite qualifications. Without going into the aforesaid dispute as to whoseversion is correct, following two admitted aspects would clinch the matter:- I. Petitioner would not have got the appointment if it was known that hehas passed IXth class and is not a matriculate. This is clear from the factthat in the enrolment sheet it has been recorded that petitioner has passedhis class Xth examination. Therefore, either the petitioner had mademisrepresentation to this effect or the recruitment officer by mistake recorded that the petitioner was a matriculate i. e. "petitioner had passed hisclass Xth examination". II. It is the petitioner only who is the beneficiary of this wrong recording inthe enrolment sheet as he could get the employment which he would nothave got otherwise. ( 8 ) THEREFORE whether the petitioner is responsible or his appointment is theoutcome of mistake committed by respondents in either case it was permissible forthe respondent to straight the wrong, right. The respondent for this purpose issuedshow cause notice to the petitioner, received his reply and thereafter dischargedhim from duties. Thus the principles of natural justice were also followed beforetaking action against the petitioner. ( 9 ) ONCE it is shown that petitioner was not entitled to be enrolled as infantry man,merely because he served for seven years and 228 days or his service wasexemplary would not make any difference. In Union of India and others Vs. Thus the principles of natural justice were also followed beforetaking action against the petitioner. ( 9 ) ONCE it is shown that petitioner was not entitled to be enrolled as infantry man,merely because he served for seven years and 228 days or his service wasexemplary would not make any difference. In Union of India and others Vs. C. Devan reported in 1995 Supp (4) SCC 101, the Supreme Court held that where theemployment was secured by fraud such appointment would be rendered voidableon the option of the employee and employee cannot plead estoppel in such a case. Merely allowing continuance of such an employment could not create any equity infavour of the employee or any estoppel against the employer. ( 10 ) SIMILARLY in Smt. Ramdas Sharma and another Vs. State of Punjab andothers reported in JT 1994 (6) SC 531 the apex Court held that where theconcerned employee (appellant in that case) did not possess the. requisitequalification for appointment to the post of a clerk the appointment was bad in lawand was liable to be set aside. There was no question of estoppel in such a case. In that case also appellant had raised the contention that she had not concealedher qualification and therefore she could not be blamed. This contention of thepetitioner was repelled. This contention is noted in para 6 of the judgment and dealtwith in para 11. Both the paragraphs are reproduced below:- 6. Before the High Court, the argument was that inasmuch as the appellantdid not conceal her qualification, she could not be blamed if she had beenappointed. Therefore, no order adverse to her, could have ever beenpassed. 7. xxxx 8. xxxx 9. xxxx 10. xxxx ( 11 ) WE are of the view that no exception could be taken with the impugnedjudgment. The appellant is not found fault with for concealment ofqualificatron. On the contrary, what is complained against her is lack. ofqualification. We may now extract Regulation 7 of the Regulations. Itreads as under:-a. . . . . . . b. . . . . . c. . . . . . d. . . . . . e. in the case of Junior scale stenographerii. . . . . . On the contrary, what is complained against her is lack. ofqualification. We may now extract Regulation 7 of the Regulations. Itreads as under:-a. . . . . . . b. . . . . . c. . . . . . d. . . . . . e. in the case of Junior scale stenographerii. . . . . . (iii) by direct appointment of a persons who is a Graduate or Intermediatesecond Class or a Matriculate first class, of a recognised University andqualifies such tests as may by prescribed by the Establishment Member. f. in the case of clerks - (iii) by direct appointment of a person who is a Graduate or Intermediatesecond class or Matriculate first class of a recognised University and haspassed a qualifying examination conducted by the Board. To the same effect is the judgment in the case of Dr. Ashok Kumar Maheshwarivs. State of Uttar Pradesh and another reported in (1988) 2 SCC 502. Before concluding I may refer to one more aspect. Petitioner in this petitionhad stated that no show cause notice was issued before discharging him fromservice. This is a false statement made in the petition. As already noticed aboveas not Only show cause notice dated 26/03/1995 was issued to him, petitionereven replied to the said show cause notice vide his reply dated 8/04/1995. Therefore, there is a concealment of material fact and the petitioner had not cometo this Court with clean hands. Further in para 2 of his reply at 8/04/1995 thepetitioner had stated as under (english translation) :-I was enrolled on 9/03/1988 in DRO, Jhunjhunu. At the time I wasenrolled, I was enrolled in Group D as non matric. I had submitted originalnon-matric TC at that time. Babu (recording officer/clerk) had preparedmy document of Xth pass and sent me to the course regimental centre fortraining. In this there is no mistake of mine. I had come after being enrolledas "group D". Perusal of the aforesaid para would show that petitioner himself admits thathe had come for enrolment in Group d although he maintained that it is therecording officer who prepared wrong document and enrolled him as an infantryman and sent him for requisite training. Be as it may, petitioner was ready to accepthis position as group D employee. Perusal of the aforesaid para would show that petitioner himself admits thathe had come for enrolment in Group d although he maintained that it is therecording officer who prepared wrong document and enrolled him as an infantryman and sent him for requisite training. Be as it may, petitioner was ready to accepthis position as group D employee. It maybe relevant to mention that after it wasdetected that petitioner was wrongly recruited as infantry man he was offered post inthe lower category of cook (i. e. Group d ). However, it is petitioner who refused toaccept the same. This writ petition is therefore devoid of merits and is accordingly dismissed. Rule is discharged. No order as to costs.