C.W.P.No.4142 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.W.P.No.4142 of 2007 Date of Decision : 07.04.2008 Subedar Mewa Lal .....Petitioner versus Union of India .....Respondent CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA HON'BLE MR.JUSTICE MOHINDER PAL Present: Shri Naresh Ghai, Advocate, for the petitioner. Ms.Ranjana Shahi, Central Government Standing Counsel for the Union of India. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? JUDGMENT HEMANT GUPTA, J. In the present writ petition, the petitioner has challenged the letter dated 13.12.2006, Annexure P-10, whereby the retention of the petitioner in service was not recommended. The petitioner was recruited as Combatant Sepoy on 26.11.1980. He was promoted to the rank of Naik, Haveldar, Naib Subedar and lastly to the rank of Subedar in the year 1996. It is the case of the petitioner that in normal circumstances, he would retire after 30 years of service on 30.11.2010. It is also the case of the petitioner that on 3.7.2004, during a grenade attack blast by the militants, the petitioner lost his left eye and remained hospitalized for 25 days. The Military Hospital, while C.W.P.No.4142 of 2007 2 permanently lowering his medical category to E2, declared him fit except for night/drill/binocular bearing duties and the petitioner continued to perform his duties in alternative/sheltered appointment. The challenge in the writ petition is to the order dated 13.12.2006, Annexure P-10 wherein it has been stipulated that the petitioner has completed 22 years and 187 days of embodied service as against the mandatory minimum qualifying service of 15 days and his medical treatment from all specialized hospitals including St.Thomas Hospital, Chennai, has been completed. Thus the petitioner is not recommended to be retained in service. It is the case of the petitioner that being low medical category personnel, the petitioner is entitled to complete his normal tenure. Reliance is placed on the Army Order 46 of 1980, Annexure P-15. In reply, it has been pointed out that due to operational constrains, the provision for sheltered appointment was not available, hence the petitioner was disembodied w.e.f. 30.9.2006. However, the order passed on 13.12.2006, Annexure P-10, does not reflect that the petitioner was disembodied on account of operational constrains. A perusal of Army Order 46 of 1980 shows that the employment of permanent low medical category personnel is subject to the availability of suitable alternative appointments commensurate with their medical category. However, the personnel can be discharged if the appointment is not available or when his retention is either not considered necessary in the interest of the service or it exceeds the sanctioned strength of the regiment. The conditions specified in para 2 (a) of the said Army Order are not reflected to have been considered by the Competent Authority C.W.P.No.4142 of 2007 3 while passing the order Annexure P-10. Therefore, the averments made in the written statement are not borne out from the order passed. In view thereof, we are of the opinion that the order dated 13.12.2006, Annexure P-10, does not meet the pre conditions of the Army Order No.46 of 1980. Therefore, the order Annexure P-10 is set aside. However, it is open to the respondent to pass an order in terms of Army Order No.46 of 1980, within a period of three months from today. While passing the said order, the Competent Authority shall also pass a suitable order in respect of intervening period from the date the petitioner was disembodied till the passing of the fresh order as the duty period or otherwise. It is also open to the petitioner to submit a representation, as he may wish, for the consideration of the Competent Authority. With the aforesaid directions, the present writ petition is disposed of. (HEMANT GUPTA) JUDGE (MOHINDER PAL) 07-04-2008 JUDGE *mohinder