+ IN THE HIGH COURT OF DELHI AT NEW DELHI % 2033t2008, 2].43-2 WP (C) No,5946 of 2O07 and other connected motters Date of decision: 20.11.2008 177612008, 201g.ggg, ,68r "008. 1691: ?q ?tsztzooe. zfigtzoo n* 6)aDone ??ag?999. 2161Q4z=o=o5 2. !q?g l?ooe, ut ztzooa, l@6be. 2o3? t7 ool 9183t?997. 8412t29a,!. 8 qggs l?gg?, 88111? e],0=tzo_01, ss,gt?ogr. w, 99251_?997, e648/roo?. 83€6 ?p i? 99g, ?90129g9.346l?0, 9&@0qB, - 3tE00 . :97?gag, silr?gqg, :?1 1? 5411?999, soztzgqg. sf=?a zelGogg. zeGtzgog, ggfr?go gll i?ggq, e40,2998. e.4ll % +9291?099. 11191? +Eq2l2og8. 16Q3'290 8. 172s'-008. @ rrro ^oor. rrr.ql ?o?ttzooa, zzogtz ,. ?n?oDooe, 8. 13?rtrool. 00 00 3/2008, 2384t2009, zEastzn ffi :q?9f*qg 1;4#P, 3747'oog 37moo8. . 4ooo,2oo8:-ffiffi;fr Page 1 of I 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 fi SUBEDAR(SICI) PUTTAN LAL AND OTHER CONNECTED PETITIONERS Through: 00 B2 008 ...PETtTtONER(S) Advocates for the petitioners. Versus ...RESPONDENTS 19 08 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, cor. c.K. sharma, cor. A.s. Chauhan, Mr, Mohan KUmar, Mr. N.L. Bareja, Mr. Hitender sakkarwal, Mr.sudhir Mittar, Mr. EJ. vaigirese, ' l,!r. Kuljiwan Goyal, Mr. Alok Kislror, iur. fu,iOun (u*.i, Mr. Anil Kumar pandey, Mr. Rajeev Anand, Mr. B.p: Shukla, yr :.n4. Dalal, Mr. D.S. kauntae, Mr.Soumyajit . Pani, Dr.Alok K.Sharma, Mr.R.D.Tybgi, Captiin K.M.Saxena, Ms. Rekha palli with Ms. punirn-Singh, '. Mr. s.L. Kumar with Mr. B.K, Ahruwaria, cor'.s.s.c"nnawat, Mr. A.K. Bakshi with Mr. Romesh Gautam, Ms.Bandana Shukla, Mr,R,K.Sharma, Mr.Aagney Sail'' & M;.Abhik , Kumar, Mr.M.S.Sasan, Dr.R.Slsasan, Mr.A.K.Tri""Ji; Ms.Jagrati singh for Mr. M.K.Bhardwaj, tvrr.s.K.Kumai, . Mr.B,V.K.Ahluwalia and Ms.Rita Hingman"g. UNION OF INDIA & ORS. Thr6ugh: Mr. Ashwani Bhardwaj, Mr. Manoj Ohri, Mr. Hemant Gupta, Mr. puneet . Khurana, 'Ms.Monica darg,'l'4i.Snuf.i'. Hasan, Mr.Amiet Andley, Mr. Saroj giOaw"at, 'iof . R. Balasubiamaniam,Mr. Aakash pralap, M;.' garkha Babbar, Ms. Sonia Mathur, Mr. pankaj gatri, Vir. nnil Gautam, Mr. M.M, Beg, Mr. Saleem Ahmed,'Ms;Shilpa Singh, Mr.Yogesh Varma, Mr.prakasir (urur, Wp (C) No.59a6 oJ 2007 ond other connected motters Poge 2 of 8 \$ . Mr.Jaswinder _ Singh, Ms. Monika Garg, Mr. Gaurav Liberhan, Mr.Rohit Malik, Mr.Jatin Dhawani' ' Mr' M.Y' Khan, Mr. Amiet Andray, Mr. s.M. 2urfiqar Aram, _ wis.jyoti Singh, Mr. Ankur Chhi Mr.pankaj Batra, Mr. sareem Ahmed with Mr, r-tabidui Rahman, !lr,.S.anjay Katyal with Mr. Ranjeet KumarJha, [4r. Vikas Sethi wiilr Ms. Nlaninder Achar a, Mr. Rajan Sabharwal with Ms. Seema Bhidauriya, Mr, Pushkar Sood with Mr. Varun Kathuria, ' Mr. Sewa Ram with Mr, R,K. Bachchan, Mr. Dalip Mehra with Mr. Rajiv Ranjan Mishru, Mr. jai Bansar and Mr. Vivek-singh,'AdvocJtes, proxy for Ms. Madhu Sharan, Mr. Sanjay Katyal, Mr. R.V. Sinha, Mr. A.S. Singh and Mr.puneet Khurana, Advocates grong with coroner G.s.Aur _and_-Ma1or s.s. s. Advocates for the Respondents. CORAM: HON'BLE IvlR. JUSTICE SANJAY T..ISHAN KAUL HON',BLE MR. jusTtcE MOOL CHAND GARG 1. Whether the Reporterr oi local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? SATUAY KISHAI{ f..AUL, l. (ORAL) 1. The common question r,vhich arises for consideration in this batcir of petitions is as to wlreilier an army personnel could have been discharged from service witl-rout holding the Invaliding Medical Board ('rMB' 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 issuecl . directions that this court should stay its hand till the authoritative pronouncement of the supreme court is available on this .rp".i. we may also note that interim orders were granted by this Court, but the suprerne court vacatec the interim orders and in view thereof a general WP (C) I'1o.5946 ol 2OO7 ond other ccnnected motters Poge 3 of 8 interim order was passed by this court on 14.05.2008 keeping in.mind the orders passed b), the Supreme Court whereby the benefit of stay was restricted to the service personnel continuing in the accommodation provided by the Army. 2. The supreme court has delivered a judgment in civil Appeal No,6587/2008 in union of lndia & ors v. Rajpal sinqh on 07.11.2008, The question which has been decided has been succinctly set out in para 2 of the order itself as to whether the holcling of an IMB is a condition precedent for discharge of a Junior Comrnissioner Officer (JCO,) on account of low medical category. 3. we may add here that this principle would actually apply not . .only.to the JCos alone, but also to all the personnel Below Officers Rank ('pBORs, for short). ,' The conclusion of the supreme court is that the High court was/correct in holding f that the PBoRs could not be clischarged from service without holding an tMB. 4. The resuii of the aforesaid judgment is that all the present petitions are liable to be allowed. 5. we have heard the counsel for the parties for purposes of concluding as to what directions are required to be passed in the present petitions. The following directions are accordingly issued: i) The order passed by. the chief of Army staff dated !2.04.2007 directing discharge of all the personnel in Low Medical category without hording the rMB is quashed. ii) The petitioners.who stand discharged as a consequence of the aforesaid oider are entifled to be reinstated with all ,l L!'P (C) I'to.5946 of 200i and other connecled mltters t'oge 4 of 8 consequential benefits including continuity of service, pay and allowances and seniority as per the rules,.-, ..-.---- ..- iii) . The petitioners would report to their respective Regimental centre from where they have been discharged within a period of 30 days from today for joining\ The pay and allowances and other o6ilrits to .sqch of the petitioners who have not been paid the pension and retiral benefits incruding by AGIF arising from'the discharge order will be remitted within a maximum period of threel months from tod'ay. Naturally, this would .be applicable only to such of the petitioners who join within the aforesaid time. iv) There are certain petitioners Who have been paid pension, .retiral behefits and amount by AGIF dnd if they.seek to re-join naturally they have to refund the amoUnt. However, they are 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. u' v) In respect of aforesaid direction (iv), if the balance amount. is not remitted back to the respondents, it will be deemed that such petitioners have accepted their discharge. vi) In case of the petitioners who have not been discharged, naturally the oFcasioh to discharge them now would not arise without holding the lMB. WP.(C) No,59 6 of 2O07 ond other connected matters Poge 5 of 8 vii)The respondents are not precluded from holding the lMBs A \ --after-sue-h ioining in accordance with law as per the Army Act, 1950, The Army Rules, 1954 and Army lnstructions. viii) ln view of tne passage of time from the date of discharge till the date of rejoining, it will be open to the respon-dents to 't - carry out any police 'verification as . may be deemed appropriate by the responderrts. 6. We would have disposed of all these writ petitions with the aforesaid directions alone, but we are conscious of the fact hat 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 petitions befbre this Court. Such policy decision was taken on 12 .Oq.ZOOI and is in proximity of time, ln order to give option to such other persons who- may' not have .'. '.' . ;t ; .i- . judgment of the Supreme Court ung to avoid such unnecessary spate.of litigation before this court, it has become necessary to issue certain further general directions even.in respect of the pBoRs. who have not approached any ' Court till date. This is not only in the interest of such persons but also' in the interest of the respondents and to avoid unnecessary huge litigation. . 7. . lnspfar as the aforesaid persons fcillowing directions are issued: i) lndividual 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 WP (C) No.59a6 of 2007 ond other connected motters are concerned, the Poge 6 of 8 present writ petitions. The option letter will indicate that such option has to be exercised within a period of 30 days of the receipt of the letter and- 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 als.o 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 persons who have been discharged or proposed to discharged under the policy letter dated 12.04.2007 or those who. may have' been discharged earlier but 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 petitioners, whose normal date of superannuation has already arrived or would arrive before the aforesaid option is issued. ln 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. lleedless to say that those 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. Av ,l., the ':l ha WP (C) No.5946 of 2007 ond other connected motters Poge 7 oJ 8 / I The petitions stand allovued with the aforesaid directions. * CM 771l2008 in WP(C)3891200b In view of the disposal of' the writ application does not survive for consideration stands disposed of. NOVEMBER 20, 2OO8 dm petition, the and the same WP (C) No.5946 of 2OO7 ond other connected motters Page 8 of I