+ wP(Cl Nos: 5=946t2.eo7. 9382t2o07, 9389/20a7, 9454t2007. 141'?90r. o.ro1?.0!=r, rorrr3,gggr . 1ZZ9lr008, ?qlg{2 ry268 , 11??12998, 11!9/?948. 3245ffi--624/2008 9!syzooe. ?E?_?€goe, :5 7. 9?98/?007. 10?00.8.. ae3,?oodl , +?1y?448, 13J2?ggB, 137q/20 , t ?93?Qooa. ziqz,?lqado , ?z_+?tzggl. ogt_l+ggo. ogqgzoos, t - g_2??,_^go, . ?!?\t?gg-,, 842et?oo7 . 8467 t2oo7 , s4fF|zow . 9!9?t2007, 9?0st?007, qg+7_|?997 , agezlno . e!3u2007. e\slPqQ7, e764t20o . ry.u2007 , e?7gl2gg7, e6t8t2ob w, ?9?51?007, e648/2007. 83-86/2008 , r??lzooa, =_.. raolzoog, re. 3 4lz0 0 B. 2 e 0/2=0 9 9,3 4 6/2 0 0 8, 3 s t/2 00 8, " ',1, s 2/2 0 0 B', 3 s tm6E, !gz{?908. s134?g0q !?u2008, s3 , ,!e4?ggg. sorl_rggg. B.u. o*. 6+r,ryg08, 6sst?o#. 7_q4l?0o8, 7 86/?Q8_9, gg4t2oo8, gz4zooffi . glg{?908, 882/?ggg, e2el2008, ?30 ?3Zt?808, e40l=2099,,e41l200 g gg,?ggq, e70,29-0q,. 972l2 008 +9211?908, 1=149{?ggg, 1146/' +2gXi?908. 1?0q{?ggg. 127312008, +38V2008. 1?gzt?908. 13e7l2008 +I!sr4gog, \+\?r.zgs_?. tqzoi2 . 111942909, r9994?99q. iu la_gzr?qos, rya?r?goe, ii +!?t,?ggg, tlzg_r,zggg, ttzo,z . +!3et.29o8, t!.19t.?998, 17 4rl . +z!gt4aog. rl!7t.20a9, n 48 . 11?g{rggg, 191942 ?9_27 t?oog. 220.e__tz-gg1 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 20.11.2008 ?rqi{?qee ???, 1435t20 zlqztzooa. zle+.Daoa. I 2991=t?0_0.8. 26ry? s0/r008,r86ffi 322712008 and 3232lzooa, 3733lZoog. rzraDnnn ?7?q/?nna 8 WP (C) No.5945 of 2007 ond other connected motters 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 4527 Through: Major K. Ramesh, Mr. Amol Rattan Singh, Ms. Neelam Rathore, Col. S.R. Kalkal, Mr. Rajeev Anand, Mr. C.M. Khanna, Mr. Viraj R. Datar, cor. c.r. sharma, cor. A.s, Chauhan, Mr. wtohan Kumar, Mr. N.L. Bareja, Mr. Hitender sakkarwal, Mr.sudhir Mittal, Mr. EJ. vaighese, Mr. Kuljiwan Goyal, Mr. Alok Kishor, Vr. t(undan liumar, Mr. Anil Kumar pandey, Mr. Rajeev Anand, Mr. B.p: . shukra, Mr. s.M. Darar, Mr. D,s. kauntae, wtr.sournyalit . pani, Dr.Alok K.Sharma, . Mr.R.D.Tybgi, a;pt;i; K.M.Saxena, Ms. Rekha palli with Vts. punim 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 shukra, Mr.R,K.sharma, Mr.Aagney sair & ruri.Annil Kumar, Mr.M.S.Sasan, Dr.R.SlSasan, Mr.A.K.Triu.di; MsJagrati singh for Mr. M.K.Bhardwaj, rrar.s.r.<umai, Mr.B.V.K.Ahluwalia and Ms.Rita Hingmang. SUBEDAR(STT) PUTTAN LAL .AND OTHER CONNECTED PETITIONERS ...PETITIONER(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 Garg, Mr.Shakir Hasan, Mr.Amiet Andley, Mr. Saroj Sidaw";t, Col. R. Balasubiamaniam,Mr. Aakash pralap, Ms.' Bartcha Babbar, Ms. Sonia Mathur, Mr. pankai 'gatra, l,lr, nnit Gautam, Mr. M.M, Beg, Mr. Saleem Ahmed,'Ms.Shilpa Singh, Mr.Yogesh Varma, Mr.prakasi.r Kumar, WP (C) No.S946 ol2007 ond other connected matters Poge 2 of 8 Mr.Jaswinder Singh, Ms. Monika Garg, Mr. Cuulav Liberhan, Mr.Rohit Malik, Mr.Jatin Ohawanl Mr. M.Y. Khan, Mr-_Amiet.Andlay, Mr. S.M.2ulfiqarAtam. Ms.jyoti Singh, Mr. Ankur Chhim Mr.Pankaj Batra, Mr. Saleem Ahmed with Mr. HabiSui Rahman, \tr,.S.anjay Katyal with tvtr. Ranjeet KumarJha, It4r. Vikas Sethi wiilr Ms. Ntaninder Acharya, Mr. Rajan Sabharwal with Ms. Seema Bhadauriya, Mr. Pushkar Sood with Mr. Varun Kathuria, ' Mr. Sewa Ram with Mr. R.K. Bachchan, Mr. Dalip Mehra with Mr. Rajiv Ranjan fvtishia, Mr' Jai Bansar 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 .arorlg with .coroner G.s.Aur and_.IU.alor s.s. ndents. Advocates for the Respondents. CORAM: HON'BLE MR. JUSTTCE SANJAY KtSHAt{ KAUL HON'BLE IVIR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of 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? SAI'UAY KISHAIIJ KAUL, l. (ORAL) 1. The common question wlrich arises for consideration in this batcir of petitions is as to wlreilrer an army personnel could have been discharged. from service without holding -the Invaliding 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 pronouncement of the supreme court is available on this aspect. we may also note that interim orders urere granied 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 other cannected moiters Page 3 of 8 interim order was passed by this court on 14.05.200g keeping in mind the orders'passed bl, the Supreme Court whereby the benefit of stay was restricted to the service personnel continuing in the accommodation provided by the Army. I 2' The supreme Court has delivered a judgment in civir Appeal No'6587/2008 in Union of rndia & ors v. Rajpar 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 Ol'.ficer (JCO,) on. account of low medical categ6ry. 3. we may add here that this principre wourd actuaily appry not .only to the JCos alone, but also to all the personnet Below 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 clischarged from service without holding an lMB. 4. The resuit of ilre aforesaid judgment is that ail.the present petitions are liable to be allowed. 5. we have heard the counsel for the parties for purposes of concluding as to what directibns 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 12.04,2007 directing discharge of all the personnel in Low Medical Category without hording in" tNie is quashed. ii) The petitioners who stand discharged as a consequence of the aforesaid order are entiiled to be reinstated with all 1J VlP (C) I'to.5946 ol 20Ai' ond otlter connected mctters Irdnt /l ^f I consequential benefits including continuity of service, pay and allowan.ces 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 n66rits to such of the petitioners who have not been paid the pension and retiral benefits including by AGIF arising from the oischaige order will be remitted within a maximum period of three months from tod'ay. Naturally, this would be applicable only ta 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 acir and if they seek to re-join naturally they have to refund the amount. However, they are refunded batk by them and the amount be remitted by such persons within 30 days of intimation jof the amount to be remitted back by them. -.' v) In respect of aforesaid direction'(iv), if the balance amount.is'nbt remitted back to the respondents, it will be deeined that such petitioners have accepted their discharge. vi) In case of the petitioners who have not been discharged, naturally the occasion to discharge them now would not arise without ho d ng the tMB WP (C) No.59 6 of 2007 and other connected motters Page 5 of 8 vii)The respondents are not precluoed from holding the lMBs --after sue.h ioi+ring in accordance with ldw'as per the Army Act, \ AI I xJl 1950, The Army Rures, 1954 and Armv rnstructions. | | 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.. 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 that there are a large number of personnel who have been dischargeb under the policy which has been held to be illegal by the supreme court, This has already started resulting in a spate of petitions befbre this court, such policy decision was ' taken on 12.04.2007 and is in proximity of time. ln order to ': '- ': - approached the Court till now'arising ab a conseqtience of the "l judgment of the 'supreme court and to avoid such , unnecessary spate.of litigation before this court, it has become necessary to issue cdrtain further general directions even in respect of the pBoRs who have hot approached any court till date. This is not only in the interest of such persons but also' ih the interest of the respondents and to avoid .l unnecessary huge litigation. 7. Insofar as the aforesaid persons are concerned, the fcillowing directions are issued: i) lndividual options will 'be sent by the respondents to iuch . persons within two months making an offer to them to rejoin if they so desir_e as per the aforesaid directions passed in the wP (C) No.59a6 of 20O7 ond other connected motters 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'-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 glso 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 governgd by all the directions made in respect of the petitioners herein insofar as apPlicable. .iv)The general directions are applicable only to such of the persons who have been discharged or proposed to be 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 peiitioners, 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. Needless 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. 22- wP (C) No.5946 of 2007 ond other connected motters Poge 7 of 8 e3 The petitions stand allowed with the aforesaid directions. CM 77112008 in WP(C)389/2008 In view of the disposal of the writ petition, the application does not survive fo1 consideration and the same stands disposed of. ff SANJAY KISHAN KAUL;J:-. NOVEMBER 20, 2OO8 dm WP (C) No.5946 of 20O7 ond other connected motters Poge 8 of 8