IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :23.6.2009 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.3254 of 2008 and M.P.No.1/2008 MR.KAILAS NIVRUTTI SHINDE .. PETITIONER Vs 1 THE UNION OF INDIA REP BY THE SECRETARY TO GOVERNMENT MINISTRY OF DEFENCE NEW DELHI. 2 THE CHIEF OF ARMY STAFF ARMY HEAD QUARTERS NEW DELHI. 3 THE ENGINEER IN CHIEF BRANCH ARMY HEAD QUARTERS KASHMIR HOUSE NEW DELHI. 4 THE CHIEF RECORD OFFICER RECORD OFFICE MADRAS ENGINEER GROUP SIVAN CHETTY GARDEN POST BANGALORE. 5 THE GARRISON ENGINEER ST. THOMAS MOUNT OLD M.H. COMPLEX RUDRA ROAD CHENNAI 16. ..RESPONDENTS ------ Prayer Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for all the connected records pertaining to the discharge order dt 3.10.2007 in proceedings No.1363/CA/stats-1/DO/LMC/MAR 2008/J/2007 on the file of the 4th respondent and quash the same and consequently direct the respondents not to discharge the petitioner from service without accommodating in shape II medical category posts. For Petitioner : Mr.G.Justin For Respondents: Mr.B.Shantha kumar Senior Panel Counsel for Central Government. https://hcservices.ecourts.gov.in/hcservices/ O R D E R By consent of both sides, the writ petition itself is taken up for final disposal. 2. The prayer in the writ petition is to call for all the connected records pertaining to the discharge order dated 3.10.2007 in proceedings No.1363/CA/stats-1/DO/LMC/MAR 2008/J/2007 on the file of the 4th respondent and quash the same and consequently direct the respondents not to discharge the petitioner from service without accommodating in shape II medical category posts. 3. The case of the petitioner is that he entered service as Sepoy on 21.8.1984, subsequently promoted as Naik and thereafter as Havilder and now working as Naib Subedar. As per service condition, the petitioner can work for 26 years which is extendable for 2 years by screening or 52 years of age, whichever is earlier. 4. The petitioner was issued with a discharge order dated 3.10.2007, wherein his service is to be discharged with effect from 31.3.2008. The reasons stated in the discharge order is that he was placed in medical category lower than SHAPE-I and not up to the prescribed military physical standard under item 1 (iii)(b) of the table annexed to Army Rule 13(3). 5. According to the petitioner, the respondents would have considered the petitioner under SHAPE II Posts which he is eligible as per Rule and hence the discharge order dated 3.10.2007 by placing him under medical category lower than SHAPE-I is illegal and against the service conditions and service rules applicable to him. Further according to the petitioner, the respondents discharged him from service by invoking the provisions applicable for military personnels who are in the war field or war front for whom alone medical category SHAPE-I is prescribed, whereas, he is working only in clerical cadre and hence the discharge order is totally illegal. Therefore, he has filed the present writ petition. 6. Counsel for the respondents has filed counter affidavit stating that while serving with Commander Works Engineers (Air Force) Bhuj, the petitioner was placed in low medical category S1H1AIP3E1 (temporary) with effect from 22 November 2004 due to diagnosis 'SCIZURE DISORDER' by a duly constituted Medical Board. On review, https://hcservices.ecourts.gov.in/hcservices/ the petitioner was placed in low medical category S1H1A1P2E1 (Permanent) with effect from 18 November 2005 and was retained in service as sheltered appointment was available with this Group. 7. It is further submitted that the Competent Authority had arrived at a decision in the interest of the organisation to dispose of Low Medical Category (Permanent) Junior Commissioner Officers after completion of 20 years of service. Accordingly, discharge order of the petitioner has been issued dated 03 October 2007. Therefore, the petitioner is required to be discharged from service with effect from 31 Mar 2008 within the framework of rules and orders on the subject. 8. It is further submitted that the respondents issued show cause notice to the petitioner for conveying the decision of the competent authority in accordance with the rules and orders already issued on 21 September 1998 and all other similarly situated personnel are discharged from service with all pensionary benefits admissible under rules in the interest of the organisation and the relevant rules/orders cannot be overlooked in the case of the petitioner alone for his personal gain. 9. In the counter, it is further stated that Army needs 100% physically/mentally fit Soldiers to fight the battle wars. The petitioner has been downgraded to Low Medical Category with effect from 22 November 2004, he was retained in service from 22 November 2004 to 31 March 2008 despite he was unfit and was in low medical category as sheltered appointment was available with this Group (Madras Engineer Group). However, the strength of the Group has gone more than 106% with effect from 01 July 2007 and no sheltered appointment is available. The petitioner has been serving in peace area after he was declared unfit to serve in Field/High altitude/Operational Areas. All his achievement made are in peace area, but he cannot be employed for war/battle duties. Therefore, his discharge order has been issued. 10. Heard Mr.G.Justin, learned counsel for the petitioner and Mr.B.Shanthakumar, learned counsel for the respondents. 11. The facts pleaded by the learned counsel for the petitioner are not disputed by the learned counsel for the respondents. The only question raised by the learned counsel for the petitioner is that even if the petitioner has been placed under medical category lower than SHAPE-I, the competent authority can discharge him only after following the Rules and only on the recommendation of the https://hcservices.ecourts.gov.in/hcservices/ Invalidating Board. To substantiate his contention, the learned counsel pointed out that the discharge order is passed without following Rule 13(2A) and Rule 13(3). 12. After elaborate arguments, learned counsel on either side produced copy of the ruling of the Supreme Court reported in 2008(14) Scale 591 in the case of Union of India and Others Vs. Rajpal Singh, wherein it was held thus:- "17. Rule 13 which is the pivotal provision reads thus: 13. Authorities empowered to authorise discharge – (1) Each of the authorities specified in column 3 of the Table below, shall be the competent authority to discharge from service person subject to the Act specified in column 1 thereof on the grounds specified in column 2. (2) Any power conferred by this rule on any of the aforesaid authorities shall also be exercisable by any other authority superior to it. (2A) Where the Central Government or the Chief of the Army Staff decides that any person or class or persons subject to the Act should be discharged from service, either unconditionally or on the fulfillment of certain specified conditions, then, notwithstanding anything contained in this rule, the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision) (3) In this table "commanding officer" means the officer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned officers and warrant officers of the Special Medical Section of the Army Medical Corps, the "commanding officer" means the Director of the Medical Services, Army, and in the case of junior commissioned officer and warrant offices of Remounts, Veterinary and Farms, Corps, the "Commanding Officer" means the Director Remounts, Veterinary and Farms. https://hcservices.ecourts.gov.in/hcservices/ Category Grounds of discharge Competent authority to authorise discharge Manner of discharge 1 2 3 4 Junior Commissioned Officer I(i)(a)On completion of the period of service or tenure specified in the Regulations for his rank or appointment, are on reaching the age limit whichever is earlier, unless trainee on the active list for further specified period with the sanction of the Chief of the Army Staff or on becoming eligible for release under the Regulations Commanding Officer (b) At his own request on transfer to the pension establishment Commanding Officer (ii)Having been found medically unfit for further service Commanding Officer To be carried out only on the recommendation of an Invalidating Board https://hcservices.ecourts.gov.in/hcservices/ Category Grounds of discharge Competent authority to authorise discharge Manner of discharge (iii)All other classes of discharge (a)In the case of Junior Commissioner Officers granted direct commissions during the first 12 months service Area/Divisional Commander If the discharge is not at the request of the JuniorCommission ed Officer the competent authority before sanctioning the discharge shall if the circumstances of the case permit give the Junior Commissioned Officer concerned an opportunity to show cause against the order of discharge (b) In the case of JCOs, not covered by (a) serving in any Army or Command the General Officer Commanding-in- Chief of that Army or command if not below the rank of Lieutenant General © In any other case the Chief of the Army Staff." https://hcservices.ecourts.gov.in/hcservices/ 18. The afore-extracted Rule 13(1) clearly enumerates the authorities competent to discharge from service, the specified person; the grounds of discharge and the manner of discharge. It is manifest that when in terms of this Rule an army personnel is discharged on completion of service or tenure or at the request of the person concerned, no specific manner of discharge is prescribed. Naturally, the Regulations or Army Orders will take care of the field not covered by the Rules. However, for discharge on other grounds, specified in Column(2) of the Table, appended to the Rule, the manner of discharge is clearly laid out. It is plain that a discharge on the ground of having been found "medically unfit for further service" is specifically dealt with in Column (I)(ii) of the Table, which stipulates that discharge in such a case is to be carried out only on the recommendation of the Invalidating Board. It is a cardinal principle of interpretation of a Statute that only those cases or situations can be covered under a residual head, which are not covered under a specific head. It is, therefore, clear that only those cases of discharge would fall within the ambit of the residual head, viz.,I(ii) which are not covered under the preceding specific heads. In other words, if a JCO is to be discharged from the service on the ground of "medically unfit for further service", irrespective of the fact whether he is or was in a low medical category, his order of discharge can be made only on the recommendation of an Invalidating Board. The said rule being clear and unambiguous is capable of only this interpretation and no other. " 13. A careful reading of the above rule makes it clear that if the Junior Commissioned Officer has to be discharged from service on the ground of medically unfitness for service, that can be done only after subjecting him to Invalidating Board. In the instant case, as the fourth respondent without following the above rule by referring the petitioner to Invalidating Board, has passed the impugned discharge order. Hence, the same suffers from legal infirmity and it cannot be sustained. 14. Applying the ratio followed in 2008(14)Scale 591 in the case of Union of India and Others Vs. Rajpal Singh, this writ petition is allowed setting aside the order dated 3.10.2007 in proceedings https://hcservices.ecourts.gov.in/hcservices/ No.1363/CA/stats-1/DO/LMC/MAR 2008/J/2007 order of the fourth respondent. No costs. Consequently, M.P.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nvsri To 1 THE SECRETARY TO GOVERNMENT MINISTRY OF DEFENCE THE UNION OF INDIA NEW DELHI. 2 THE CHIEF OF ARMY STAFF ARMY HEAD QUARTERS NEW DELHI. 3 THE ENGINEER IN CHIEF BRANCH ARMY HEAD QUARTERS KASHMIR HOUSE NEW DELHI. 4 THE CHIEF RECORD OFFICER RECORD OFFICE MADRAS ENGINEER GROUP SIVAN CHETTY GARDEN POST BANGALORE. 5 THE GARRISON ENGINEER ST. THOMAS MOUNT OLD M.H. COMPLEX RUDRA ROAD CHENNAI 16. 1 cc To Mr.R.Shanthakumar, Advocate, SR.25395 1 cc To Mr.G.Justin, Advocate, SR.25295 W.P.No.3254 of 2008 RL(CO) SRA(8/7/2009) https://hcservices.ecourts.gov.in/hcservices/