+ 101?90q, 4gg1?ao=8. , '/'- \t/ l\l)lz IN THE HIGH COURT OF DELI-II AT NEW DELHI Date of decision: 20.11.200g 036/2008, 2133/2008 s620t2007 egae . grTt?oor , grs3tzoo7 it -gzsqtzooT. 962st2007 647 t2008 008 804 929t2008. 93 8 972t2008 83/2008 ]-729t2008: 47 7 r876t2 7 2 56 6 284 3227 t20 3 ' . WP (C) No.5g46 oi 2007 ond other connected motters I B 4 7 2881/2008 B, I]-5-I20|20 L4 72 3 77 00 0 0 0 0 B 008 0 a 0 08 2008. 2 74 0 9 8 Page 1 of 8 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified B z 2I Through: ' Major K. Ramesh, Mr. Amor Rattan singh, Ms. Neeram Rathore, " Col. S.R. Kalkal, Mr. Rajeev Anand, Mr. C.M, Khanna, Mr. Viraj R. Datar, Col. C.f. Sharma, Col. A.S. Chauhan, Mr. Mohan Kumar, Mr. N.L. Sarela, n4i. Hitender sakkarwar, Mr.sudhir Mittar, Mr. E.J. vaighese, Mr. Kuljiwan Goyar, Mr. Arok Kishor, lvrr. Kundan (rrii, Mr, Anil Kumar pandey, Mr, Rajeev Anand, Mr. g.p. . shukla, !1r. s.rr4. Darar, Mr. D.S. kauntae, Mr.soumyajit pani, Dr.Alok K.Sharma, Mr.R.D.Tyagi, Captain K.M.Saxena, Ms. Rekha paili with l',|s. punirn-singh, ' Mr. s.L. Kumar with Mr. B.K. Ahruwaria, cor.s.s.c-hhawar, Mr' A.K. Bakshi with Mr. Romesh Gautam, Ms.Bandana . Shukla, Mr.R.K.Sharma, Mr.Aagney Sail & Mr.Abhi[ Kumar, Mr.M.s.sasan, Dr.R.s.saian, Mr.A.K.Triuedi, !!l.J_ag.rati , .Singh for Mr. M.K.Bhardwaj, Vlr.S.f.fumai, SUBEDAR(SIG) PUTTAN LAL AND OTHER CONNECTED PETITIONERS .. . PET|TION ER(S) \ Advocates for the petitioners. Versus , ...RESPONDENTS UNION OF INDIA & ORS. Through: Mr. Ashwani Bhardwaj, Mr. Manoj Ohri, Mr. Hemant Gupta, Mr. puneet. Khurana) Ms.Monica darg, vrr,snalir Hasan, Mr.Amiet Andrey, Mr. saroj' gidaw-at, cor.- il.. Balasubiamaniam,Mr. . Aakash pralap, pfr.. Barkha . Babbar, Ms. Sonia Mathdr, Mr. panki; Batra,'fufr, Anil Gautam, Mr. M.M. Beg,. Mr. Saleem Ahmed, pfs.Stritoa Singh, Mr.yogesh Varma, . Mr.pritJin Ku;I;, Poge 2 of 8 WP (C) No.59a6 of 2007 ond other connected motters l. Mr.Jaswinder Singh, Ms. Monika Garg, Mr. Gau/av Liberhan, Mr.Rohit Malik, Mr.Jatin Dhawan, Mr. M.Y. l'..han, Mr. Amiet Andlay, Mr. S.M. Z tvtr. lvt .y. FrftEto, lvlr-. Amlet.Ancllay, Ivls.Jyoti singh, Mr. Ankur ctrniffiiRgh, Mr.Pankaj Batra, Mr.'saleem Ahmed with Mr. Habibur . Rahman, Mr. Sanjay Katyal with Mr. Ranjeet KumarJha, N4r. Vikas Sethi wiilr Ms. Maninder Acharya, Mr. l.j?l Sabharwal with Ms. Seema Ah-adauriy'a, Mr, Pushkar Sood with Mr. Varun Kathuria, " ' Mr. Sewa Ram with Mr. R.K. Bachgh?n, Mr. Dalip Mehra with Mr. Rajiv Ranjan wtishij, Mr. Jai Bansal and Mr. Vivek Singh, Advocates, proxy for Ms. Madhu Sharan, Mr. Sanjay Katyal, Mr. R.V. Sinha, Mr. A,S. Singh and Mr.puneet Khurana, Advocates along with coloner G.s.Aur and l{"a}or s.s. -- pondents Advocates for the Respondents. CORAM: HOI'I'BLE MR. JUSTICE SANJAY KTSHAN f,.AUL HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters oi local papers ru.y be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? SAI'UAY KISHAN KAUL, l. (ORAL) 1. The common question urhich arises for consideration in this batclr of petitions is as to wlrether an army pbrsonnel could have been discharged from service without holding the lnvaliding Medical Board ('lMB' for short). A Division Bench of this Court had held against the respondents against which the , respondents preferred a Special Leave Petition. Since the Hon'ble Supreme Court was seized of the matter, it issued directions that this Court should stay its hand till the authoritative 'pronorn.ement of in. Srpreme Court is available on this aspect. We may also note that interim orders were granted by this Court, but the Supreme Court ' vacated the interim orders' and in view thereof a general WP (C) 1,1o,5946 of 2007 ond othet cannected motters Fage 3 oJ.8 rf) t- I interim order was passed by this Court on t4.0s.200g kgeping in mind the orders'passed b-v the supreme court whereby.the benefit of stay was restricted to the service personner continuing in the accommodation provided by the Army. 2' The supreme Court has derivered a judgment in Civir Appeal No.6587/2008 in on 07.11:2008. The question which has been decided has been ' succinctly'set out in para 2 of the order itserf as to whether the holrJing of an rMB is a condition precedent for discharge of a iunior Commissioner Ol.ficer (JCO,) on. account of low medical catego-ry. 3' we may add here that this principre wourd actuaily appiy not .only to the JCos arone, but arso to ail the .personner Berow Officers Rank (,pBORs, for short). The conclusion of the Supreme court is that the High court was correct in holding that the PBoRs could not be discharged from service without holding an tMB. 4' The resuit of ttre aforesaid judgment is that arl petitions are liable to be allowed. 5' we have heard the counser for the parties for purposes of concluding as to what directions are requirlo to be passeo in the present petitions.' The following directions are accordingly issued: i) The order passed by the chief of Army staff dated l2.o4.zoo7 directing discharge of ail the personner in Low Medical Category without holding the tMB is quashed. ii) The petitioners who stand discharged as a consequence of the aforesaid order are entifled to be reinstated with all the present t'oge 4 of 8- LVP (C) 1to.5946 of 200i ond other connected matters L\.'rrrsgucilLrdr ucileilLs rncruqrng contrnurty of service, pay and t allowances and seniority as per the rules. . iii) The .petitiopers would report to their respective \1 '/ . Regimental Centre from where they have been discharged . within a period of 30 days from today for joining. The pay and allowances and other.benefits to such of the petitioners wJrg have not been paid the pension and retiral benefits including by AGIF arising from the discharge order will be remitted . within a maximum period of three months from today. ' Naturally, this would be applicab.le only to 'such of the petitioners who join within the aforesaid time. iv) there are certain petitioners who have been paid pension, ' retiral benefits and amount by AGIF and if they seek to re_join naturally they have to refund the amount. However, they are : : alsri entitled-tq b..i .p..,?i,q $e g;y-d.'3.!,g.,y,?il:,.F_t.."If'.yr qnty fhe , I . ::':^..'.,.::;':;i;..'..'.,,-;;':';;:1.i.i,i.::'.;;;:;1...;i'iir.:.f ,. net ?f.ciunt has !o Qe refungg-d uv,11,_9,ryffie lesngii'gents wiil :' .,. r.'. ': r .. ':'."..i'';.:"-ii "i;"" . lnrorm such persons about the net aniount which has to be ..J, refunded back by them 'and.the'amount be remitted by such. ' persons within 30 days of intimation :'of the amount to be , remitted back by.them. v) In respect of aforesaid direction (iv), if .the balance deemed that such petitioners have accepted their discharge. vi) ln case of the petitioners who hdvb not been discharged, ..: naturally the ogcasion to discharge them now would not arise without holding the tMB. : WP (C) No.59a6 of aOOZ ond oiher connected mofters 'Poge 5 of 8 ' vii)The respondents are not prectuded from holding the lMpip ---after suc-h ioi+ing in accordance with law'as.per the Army Act, 1950, The Army'Rules, J954 and Army lnstructions. viii) in-view of the passage of time from the date of discharge till the date of rejoining, it will be open to the respondents to carry out any . police verification as T.v be deemecj appropriate by"the respondents. t. 6. We would have disposed of all these writ petitions with the. ' aforesaid directions alone, but we are conscious of the fact that there are a large- number of personnel who have been discharged under the policy which has been held to be illegal by the-supreme Court, This has already started resulting in a . spa:e of petition, n"ibr" this court. Such policy decision was taken on 12 .04.2a07 and is in proximity of time. In order to give option to such other "persbns who may' hot. have ' .: -.approached the court till now'arising as a consbqtience of the ' .'. : judgment of the 'supremg court anq to avoid such , unnecessary. spate. of litigation before this Co,r,rrt, it has become necessary to issue c'ertain further general directions even in respect of the pBoRs who have not approached any .: Court till date. Th.is is not only in the interes_t of such persons but also in :the "interest of the respondents and to avoid I lnnaaacera, I unnecessary. huge litigation. 7. lnsofar as the afore'said persons are concerned, the '! :following directions are issued: , i) Individual options will be sent by the respondents to such persons within two months making an offer to them to rejoin if ----- they so desire as per'the aforesaid directions passed in the I WP (C) No.5946 of 2007 ond other connected motters Poge 6 of 8 i,-; present writ petitions. The option letter wiil indicate that such f:)t?) ) option has to be exercised within a'pe-riob of 30 days of the [- receipt of the letter'-an*'.in-'case the retiral and pensionary benefits have been paid to them, such persons'must rejoin along with the amount liable to be refunded by them to the respondents which shall also be indicated in the option letter. ii) The respondents Will.also give a public notice/advertisement apart from issuing the individual notice in a suitable manner preferably in national newspapers. iii)lt is made clear that such persons will also be governqd by all the directions made in respect of the petitioners herein insofar as applicable. .iv)The general directions are applicable only to such of thei persons who have been discharged or proposed to be :r the policy letter'dgr,gO ir2.04.2007 or those who '*u, have oeen dischaigeo 'eaiiiei Jut have already approached the competent court by filing a petition. v)lt is pointed out that there may be certain PBORS, which may also include some petitionei's, whose normal date of superannuation has already arrived or would a.rrive befo-re the aforesaid option is issued. In such cases, the persons would be entitled to only the benefit of pay and allowances for the differential period after adjusting any additional benefit arising from the premature discharge., Needless to say that thoge who decide not to rejoin after their premature discharge would neither be entitled to any pay and allowances nor would be required to repay the amount, if any, paid to them after their premature discharge.. 1+) wP (C) No.59A6 of 2007 ond other connected motters Poge 7 of I r-v Lwc,v >yo> vN lJl crM a. - up B00Z '02 Ufgt/{lnoN " -'f 'tn'v> wvustx tvfNvs -- aQ a-^r-a-ng 'Jo pasodslp spuels I aujes aql pue uoilejaplsuof'roj a^!runs lori saop uolle)rldde a.Lll 'uollllad luM aLll Jo lesodslp aql Jo MatA ul "o,rr"r,O plesaJo;e "U, qr^ pa/l olle puets suo;1;1ad aq1