t! .\. : IN TI-IE HIGH COURT OF DELHI AT NEW DELHI 36/2008 0 08 \f Date of decision: 20.11.200g 44 s9/2008.. 25 -92701?007 , 9s78/200t --E6J iltnnz 62st2007 15-]20t20 s35/2008.. /_ 6 00 00 2 47 t2008 00.8," s87 t2008 672t2008 008.737 008. 824/2008. I 72t2008 7612008 937 /2008. 94o/zoo9, g4Il2ooa. ba:liboE- 6noFnnq oA1 /1^^o 9 7 0 u912008, 11 08, 118 1 ?1!st2oog, zttoiz ?aTqDonR 37 47 t20 72712008;77 WP (C) No,5946 of 2O07 and other connected motters Pdge 7 oJ 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 SUBEDAR(SKT) PUTTAN LAL AND OTHER CONNECTED PETITIONERS Through: 8- 54 ...PETIT|ONER(S) Advocates for the petitioners. Versus ...RESPONDENTS 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, Col. C.K. Sharma, Col. A.S. Chauhan, Mr, Mohan Kumar, Mr. N.L. Bareja, Mr. Hitender Sakkarwal, Mr.Sudhir Mittal, Mr. EJ. Vaighese, Mr. Kuljiwan Goyal, Mr. Alok Kishor, Mr. Kundan (umar, Mr. Anil Kumar Pandey, Mr. Rajeev Anand, Mr. B.p. Shukla, Mr. S.M. Dalal, Mr. D.S. Kauntae, Mr.Sournyajit Pani, Dr.Alok K,Sharma, Mr.R.D.Tyagi, Captain K.M.Saxena, Ms. Rekha palli with Ms. punim Singh, Mr. S.L. Kumar with Mr. B.K. Ahluwalia, Col.S.S.C-hhawal, Mr, A.K. Bakshi with Mr. Romesh Gautam, Ms.Bandana Shukla, Mr.R.K.Sharma, Mr.Aagney Sail' & Mr.Abhik Kumar, Mr.M.S.Sasan, Dr.R.S.Saian, Mr.A.K.Trivedi, Ms.lagrati Singh for Mr. M.K.Bhardwaj, Mr.S.K.Kumar, Mr.B.V.K.Ahluwalia and Ms.Rita Hingmang. UNION OF INDIA & ORS. Through: WP (C) No.5946 ol 2007 ond other connected motters Mr, Ashwani Bhardwaj, Mr, Manoj Ohri, Mr. Hemant Gupta, Mr. Puneet. Khurana, Ms.Monica Garg, Mr.Shakir Hasan, Mr.Amiet Andley, Mr. Saroj eidawlt, Col. R. Balasubiamaniam,Mr. Aakash pratap, Ms. Barkha Babbar, Ms. Sonia Mathur, Mr, pankaj Batra, Mr. Anil Gautam, Mr. M.M. Beg,. Mr. Saleem Ahmed, Ms.Shilpa 'Singh, M.r.Yogesh '. Varma, Mr.prakash Kumar, Poge 2 of 8 IT Mr.Jaswinder Singh, Ms. Monika Garg, Mr. Gaurav Liberhan, Mr.Rohit Malik, Mr.Jatin Dhawani' Mr. M.y. Khan, Mr. Amiet Andlay, Mr. S.M. 2ulfiqar Alam, . wls.Jyoti Singh, Mr. Ankur Chhibm; Mr.Pankaj Batra, Mr. Saleem Ahmed with Mr. Habibur Rahman, Mr,.S.anjay Katyal with Mr. Ranjeet KumarJha, Mr. Vikas Sethi wiflr Ms. Nlaninder Acharya, 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 fvtishrJ, Mr. Jai Bansar and Mr. Vivek singh, Advocatei, proxy for Ms. Madhu Sharan, Mr. Sanjay Katyal, Mr' R.V. sinha, Mr. A,s. singh -and Mr.puneet Khurana, Advocates .arolg with.coioner G,s.Aur and_.IU_aior s.s. . Advocates for the Respondents. CORAM: HOIJ',BLE IUR. JUSTTCE SANJAY KTSHAN KAUI_ HON'BLE MR. JUSTICE MOOL CHAND GARG L. Whether the Report"rr oi local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether th.e judgment should be reported in the Digest? SAI.IIAY KISHAI{ r..AUL, I. (ORAL) 1. The colnmon question rnihich arises for consideration in this batcir of petitions is as to wheilrer an army personnel 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 pronouncement of the supreme court is available on this aspect. we may also note that interim . orders were granied by this court, but the Supreme court vacated the interim orders and in view thereof a general WP (C) l{o.5946 ol 2007 ond other cannected matters Foge 3 ol 8 'lg 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 India & 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 hok:ling of an IMB is a condition precedent for discharge of a Junior Commissioner Of.ficer (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 that the PBoRs could not be discharged from service without holding an tft4A. 4. The resuii of tlre aforesaid judgment is that all the present petitibns 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 12.04,2007 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 order are entifled to be reinstated with all t!,P (C) No.Sg46 ol 2OOi on1 otlter connected motters I>nnc i nl I consequential benefits including continuity of service, pay and allowances and seniority as per the rules..-. .....-.-." .- . iii) . The petitioners would report to iheir respective Regimental Centfe from where they have been discharged . within a period of 30 days from today for joining\ The pay and allowances and oilrrer'n€6rit, to such of the petitioners who 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 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 AGtF and if they seek to re-join , naturally thby have to refund the amount. However, they are I , . ":',:".'i'.;i:,',l-:itt '' '' "' 'it l'i": ;'' '' :'"' 'l -'-""'::":-'i il;'li i:": ;' . '':' ' ', ' riet pmUu;tnit iii-be:herunoad,ortrri,t,if5* ,"lpoiio"nti ;iii .' : ' , .. .: l- ,*."-1,,"'l'-.,. , ' .:;.: :"" . { :'-: ,'.'.'li'",,::,':,i.'.-:'- ;- ' inform'such persons about tire'net amount which has to be refunded back by them and the amount be remitted by such ' persons within 30 days of intimation of the a4ount to be remitted back by them. -.' v) In respect of , afoi-esaid direction (iv), if the balance amount'. is' not remitted back to the respondents, it will be deeined that such petitioners have a'ccepted their discharge. vi) In case of the pefitionerl who have not been discharged, naturally the occasjoh'to discharge them now would not arise without holding the lMB. WP.(CJ No,59 6 of 2007 ond other cdnnected motters . Poge 5 of 8 vii)The respondents are not precruded from'holding the lMBs .after sue.h jei+ning in accordance with law as per the Army Act, 1950, The Army Rules, 1954 and Army Instructions. 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 respondents. 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 poricy which has been held to be illegal by the supreme court," This has arready started resulting in a rp?:u of petitions befbre this court. such poticy decision was taken on 12.04.2007 aho is in proximity of time. In order to give option to such other ' persons who may. not, have . -. - gpproached the court till now arising as a .conseqdence of the judgment of the 'supreme court anq to avoid such unnecessary spate.of litigation before this court, it has become necessary to issue certain further general directions even.ln respect of the pBoRs who have not 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 . unnecessary.hugelitigation. 7. lnsofar as the aforesaid p"iron, are., concerned, the following 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 20O7 ond other connected motters 20 Page 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 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 the persons who have been discharged or proposed to be discharged under the policy letter dated 12.O4.2OO7 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, \,vhose normal date of superannuation has already arrived or would arrive before 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 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, Poge 7 of 8 9\ -l WP (C) No.59A6 of 20O7 ond other connected motters The petitions stand allowed with the aforesaid directions. CM 771l2008 in WP(C)389/200b In view of the disposal of the writ petition, the application does not survive for consideration and the same stands disposed of, ff SANJ+Y KISHAN r+ULJ:- NOVEMBER 20, 2OOB dm WP (C) No.5946 of 2007 ond other connected motters n/ I '" Page 8 of I