CWP No.7876 of 2009 : 1 : In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 25 .08.2009 Samunder Singh (No.14262505Y Ex-Havildar Petitioner Vs. Union of India and others Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Rajeev Anand, Advocate, for the petitioner. Mr.SK Sharma, Advocate,for the respondents. PERMOD KOHLI, J. The petitioner was working as Havilder in the Indian Army. He has been discharged from the army service vide the impugned order dated 23.10.2007 (Annexure P-2) being unfit for army service by placing him in the permanent Low Medical Category. The petitioner was enrolled in the Indian Army on 22.01.1985. At the time of his recruitment he was placed in Medical Category AYE (Shape-1). The discharge of the petitioner from Army is on the basis of the opinion of the Medical Board. The main grievance of the petitioner is that he has been discharged from service without recommendations of the CWP No.7876 of 2009 : 2 : invaliding Medical Board. The petitioner relied upon the judgment of the Hon'ble Apex Court in Civil Appeal No.6587 of 2008 (Union of India and others Vs. Rajpal Singh) wherein the 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 Govt. CWP No.7876 of 2009 : 3 : 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.” It is agreed to by the learned counsel for the parties that the issue involved in the present writ petition is also covered by the aforesaid judgment. The petitioner was discharged with effect from 31.01.2008. However, he was to retire with effect from 31.01.2009, but on account of his pre-mature retirement, the petitioner has been deprived of one year of service. In view of the above circumstances, this petition is allowed and it is directed that the petitioner shall be deemed to have retired with effect from 31.01.2009 i.e actual date of superannuation. The petitioner shall be entitled to all service benefits from the date of his discharge till 31.01.2009 and consequential retiral benefits. No costs. 25.08.2009 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? NO