Permod Kohli. J.@mdashThe Petitioner a Naib Subedar working in the Indian Army has been discharged from service under Rule 13(3) Item 1
(ii),--vide order, dated 11th July, 2008 (Annexure P-4) and his promotion to the rank of Subedar has been withdrawn,--vide another order, dated
19th September, 2008 (Annexure P-6).
2. Aggrieved of the aforesaid orders the Petitioner has preferred this writ petition challenging the same and seeking further direction for his
reinstatement in service. The brief facts, relevant for the purpose of this petition are being noticed hereunder:
3. The Petitioner was enrolled in the Indian Army in the Corps of Electrical and Mechanical Engineers as Store Keeper Technical on 25th August,
1981. He was promoted as Naib Subedar in the year 2001. It is stated that the Petitioner remained posted at Leh (J & K), a high altitude area
from May, 2003 to November, 2005. Thereafter, he was posted at Amritsar. In April, 2007 Petitioner was diagnosed to be suffering from
Primary Hypertension and was placed in temporary low medical classification in May, 2007. In terms of the letter of Government of India, Ministry
of Defence, dated 3rd September, 1998 a Naib Subedar with 26 years of pensionable service is entitled to extension by two years by screening or
52 years of age, whichever is earlier. It is averred in the writ petition that Petitioner was considered for extension of the term of engagement for
further two years on completion of 26 years of service and being fit, eligible and qualified, extension of service for two years from August, 2007 to
August, 2009 was granted to him. This extension was granted on the recommendations of the Screening Board in accordance with the
recommendations of the 5th Central Pay Commission, applicable to the Armed/Defence Forces of the Union.
4. It is stated that during the entire service spreading over 27 years and three months the Petitioner served the Army without earning any adverse
entry, red or black ink entry, displeasure or warning in respect of his performance or conduct. It is further stated that his work and conduct was
also commended by his superiors. According to Petitioner in May, 2008 Petitioner was brought before the Re-categorization Medical Board,
which placed him under low medical category (Permanent) for two years. On being placed in low medical category, Petitioner was ordered to be
discharged from service with effect from 30th November, 2008 through letter dated 11th July, 2007 (Annexure P-4). This discharge has been
ordered in terms of Army Rule 13(3) Item 1 (ii) of Army Rules, 1950. Before the Petitioner could be physically discharged, he received promotion
order dated 12th September, 2008, whereby he was promoted as Subedar/SKT (Store Keeper Technical). Immediately, thereafter, Petitioner''s
promotion came to be cancelled,--vide letter dated 19th September, 2008 on the ground that he has been placed in low medical category. The
Petitioner was finally discharged on 30th November, 2008. He represented against his discharge,--vide petition dated 5th December, 2008,
addressed to Respondent No. 2, which has not been responded to.
5. Petitioner has challenged his discharge primarily on the ground that the same is in violation of Army Rule 13(3) Item (i) (a) of Army Rules. Army
Rule 13 reads as under:
AR 13. Authorities empowered to authorize discharge.
(1) Each of the Authorities specified in Column 3 of the Table below shall be the competent authority to discharge from service persons subject to
the Act specified in Column 1 thereof on the grounds specified in Column 2.
(2) Any power conferred by this rule on any of the aforesaid authorities shall also be exercised by any other authority superior to it.
(2A) Where the Central Government or the Chief of the Army Staff decide that any person or class or persons subject to the Act should be
discharged from service, either conditionally or on the fulfillment of certain specified conditions, then, notwithstanding anything contained in the rule,
the Commanding Officer shall also be competent authority to discharge from service such person or any person belonging to such class in
accordance with the said decision.
(3) In this table ''Commanding Officer'' means the officer commanding the corps or department to which the person to be discharged belongs
except that in case of Junior Commissioned Officers and Warrant officers of the Special Medical Section of the Army Medical Corps, the
Commanding Officer means the Director of the Medical Service, Army, and in the case of the Junior Commissioned Officers and Warrant Officers
of Remounts Veterinary and Farms Corps, the ""Commanding Officer"" means the Director, Remounts, Veterinary and Farms.
TABLE
Category Grounds of Competent Manner of
Discharge Authority to discharge
authorize
discharge
Junior l.(i) (a) On Commanding
Commissionedcompletion of the Officer.
Officer. period of service of
tenure specified in
the Regulations for
his rank of
appointment, or on
reaching the age
limit, whichever is
earlier, unless
retained on the
active list for the
further specified
period with the
sanction of the Chief
of the Army Staff or
on becoming eligible
for release under the
Regulations, (b) at
his own request on
transfer to the
pension
establishment.
(ii) Having been Commanding To be carried
found medically unfitOfficer. only on
for further service. recommendation
of invaliding
Medical Board.
l.(iii) All other (a) in the caseIf the discharge
classes of discharge.Commissionedis not at the
Officers request of the
granted direct Junior
commission Commissioned
during the firstOfficer the
12 months of competent
service Area/ authority
Divisional sanctioning the
Commander. discharge shall,
(c) in any if circumstances
other case theof case permits
Chief of the give the Junior
Army Staff. Comm. Officers
concerned an
opportunity to
against the order
of discharge
6. The aforesaid rule provides for discharge of a Junior Commissioned Officer by the competent authority authorized to discharge on the grounds
specified against each class and in the manner specified therein. Under Rule 13 (3) (i) (a) (ii) a Commanding Officer is the competent authority to
discharge the Petitioner being found medically unfit for further service. As far the manner of discharge is concerned, it is to be carried on the
recommendations of the Invaliding Medical Board. It is contended on behalf of the Petitioner that the Petitioner was never subjected to or
examined by the Invaliding Medical Board and without the recommendations of such board, the Petitioner has been discharged in gross violation of
the mandate of the rule. From the perusal of the rule, it is evident that discharge under the aforesaid rule is permissible, if, a person is found
medically unfit for further service on the recommendations of the Invaliding Medical Board.
7. Respondents No. 1 to 4 filed their detailed written statement. In so far the discharge of the Petitioner is concerned, reliance is placed upon
Army Head Quarter letter dated 18th December, 1998 which inter alia lays down procedure for screening criteria which reads as under:
Procedure for screening criteria: PBOR 1. Reference our letter No. B/33098/AG/PS.2C dated 21st September, 1998.
2. It has been laid down in the screening criteria issued,-- vide our letter under reference, as amended/clarified from time to time that an individual
who has been screened and not recommended for extension will be discharged from service expeditiously but not later than six months from the
date of screening.
3. A doubt has been raised whether LMCJC Os/OR who have been screened and recommended for discharge can be promoted, if eligible,
during the period of six months from the date of screening.
4. It is clarified that an individual who has been screened and recommended to be discharged will not be eligible for promotion during the discharge
drill period of six months.
In the aforesaid letter it is provided that an individual, who has been screened and not recommended for extension will be discharged from service.
8. In the present case, it is admitted position that the Petitioner was considered for extension in engagement and was recommended for extension
of two years,--vide letter dated 12th September, 2008 (Annexure P-5) which order was later cancelled,--vide letter dated 19th September, 2008
(Annexure P-6). The cancellation order is also under challenge in the present petition. If, extension in engagement of the Petitioner is held to be
valid, the order of discharge does not fall within the purview of the aforesaid letter. Notwithstanding the contents of the aforesaid letter the
discharge from service is permissible under Rule 13 (3) (i) (a) of the Army Rules. The rules are statutory in nature and have to be strictly construed
and adhered. The rule mandates discharge on being found medically unfit for further service on the recommendations of the Invaliding Medical
Board. From the reply, it appears rather it is not disputed that no Invaliding Medical Board was ever held to consider the discharge of the
Petitioner under the aforesaid rule. This question is no more res integra having been settled by the Hon''ble Apex Court in Civil Appeal No. 6587
of 2008 Union of India and Ors. v. Rajpal Singh, wherein, following observations have been made:
If a person is to be retained in service despite his low medical category for a particular period as stipulated in the Army Order 46 of 1980, the
question of subjecting him to Invalidating Board may not arise. However, if a person is to be discharged on the ground of medical unfitness, at that
stage of his tenure of service or extended service within the meaning of the Army Order, he has to be discharged as per the procedure laid down in
Clause I (ii) in Column 2 of the said Table. Similarly, Sub-rule (2A) of Rule 13, heavily relied upon by the Appellants does not carry the case of
the Appellants any further. It is only an enabling provision to authorize the Commanding Officer to discharge from service a person or a class of
persons in respect whereof a decision has been taken by the Central Government or the Chief of Army Staff to discharge him from service either
unconditionally or on the fulfillment of certain specified conditions. The said provision is not in any way in conflict with the scope of the remaining
part of Rule 13, so as to give it an overriding effect, being a non obstante provision.
Emphasis supplied.
9. The next question, which falls for consideration is whether the Petitioner was entitled to the promotion to the next higher rank of Subedar during
the extension within the extended period of service. The certeria for promotion in respect to persons in low medical category has been prescribed
in Army Headquarter letter No. B/33513/AG/PS 2(C) dated 10th October, 1997, which lays as under:
Personnel pleaced in medical category ''BEE-SHAPE-2'' will be eligible for promotion to the next higher rank. This will include both temporary
and permanent low medical categories. This will be irrespective of whether or not the disease, sickness or injury is attributable/non-attributable to
or aggravated by service conditions. However, cases of medical category ''BEE (both temporary and permanent) due to psychological causes,
mis-conduct or self inflicted injuries will not be eligible for promotion.
10. In the reply filed by the Respondents, it is stated that the Petitioner came up under promotion zone during September, 2008 along with his
batch mates and he has been inadvertently ordered for promotion,--vide letter dated 12th September, 2008. The Respondents have not denied the
criteria for promotion as lays down under letter dated 10th October, 1997. To the contrary, reference is being to Annexure R-2 letter dated 13th
January, 2009, whereby the appeal/petition of the Petitioner has been disposed of saying that since the Petitioner was ordered to be discharged, he
is not entitled to extension in engagement with effect from 25th August, 2007 to 24th August, 2009 as he was down graded to temporary low
medical category.
11. The Respondents have failed to show as to how the Petitioner''s entitlement for promotion in terms of letter dated 10th October, 1997 can be
denied. Instructions and criteria for promotion contained in the aforesaid letter has not been disputed. Vide letter Annexure P-5, the Petitioner has
been ordered to be promoted on the basis of the criteria laid down thereunder. The plea of the Respondents that the promotion of the Petitioner
was inadvertent cannot be accepted as no reason or ground has been disclosed why the promotion of the Petitioner was bad in law.
12. In view of the above circumstances, this petition succeeds. Order for discharge (Annexure P-4) dated 11th July, 2008 and order dated 19th
September, 2008 (Annexure P-6) are hereby quashed. Respondents are directed to re-engage the Petitioner forthwith and also allow him to
assume the rank of Subedar on the strength of his promotion order dated 12th September, 2008 till he attains the age of superannuation. Since the
Petitioner was kept out of service for no valid reasons, the Petitioner shall be entitled to the benefit of his service/promotion for the period, he
remained out of service on account of impugned discharge order dated 11th July, 2008. Respondents to release all the arrears of salary and other
financial benefits including of the promotional post within a period of three months.
