U, IN TFIE HIGH COURT OF DELHI AT NEW DELHT Date of decision: 20.11.200g * +or/2ooe. 1ep1zop.8r _ a. z. 82??/?ao7, g4?5t.2oQ7, iiif,EfflT. . ?!y+ryyg!, gge_8t?007, gg+7_t?997 . 9137 t2007 , 9f53/2 I' , L ?2!gt?90J. e.27.8(2907 , az gg?7?ooz, s64B/20 e _ 2L}20AB.. zz_er?ooe .zg o F.ogg.z qoizooy.Wow -frma. so7'-ooa, s1ll?gog. szrizob r, r4r -008, sE=2?909. sgei r, 04z4zggg, 6s.q?qqq e, 9141?99e. 8q?/?999. 92 e. e37l2008. e49{3098. 9,l]l2 8, B, IlIgt?o_j.g?. wPggq s, rye , ,3lJtZ99B, rgPlI9 oo8, . r3rurool. : ?g4gl?099.?q4gl ffi . :0gerzooe, r4r5/200 . WP (C) No,S9 G of 2OO7 and other connected matters Page 7 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 SUBEDAR(SKD PUTTAN LAL AND OTHER CONNECTED PETITIONERS try ...PETtTtONER(S) Advocates for the petitioners. Versus ...RESPONDENTS Through: Major K. Ramesh, Mr. Amor Rattan singh, Ms. Neeram Rathore, cor. s.R. Karkar, Mr. Rajeev Anand, tr,tr, c.M. Khanria, Mi. Viraj R. Datar, cor. c.r. sharma, cor. n.s. Chauhan, Mr. Mohan Kumar, Mr. N.L. Bareja, Mr. Hitender sakkarwar, Mr.sudhir Mittar, Mr. EJ. v.igi.,"r", " Mr. Kuljiwan Goyal, Mr. Alok Kishor, Mr. fundan fumiii Mr. Anil Kumar pandey, Mr. Rajeev Anand, Mr, B.p: shukra, Mr. s.M. Dalal, Mr. D.s. Kauntae, tvrr.sournyaiit . pani, Dr.Alok K,Sharma, Mr.R.D.Tyagi, Cjptain K.M.saxena, Ms. Rekha paili with l,rs. punirn-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'' g n,ti:Afiik Kumar, Mr.M.S.sasan, or.R.slsasan, Mr.A.K.Triv.Ji; MsJag.rati singh for Mr. M,K.Bhardwaj, nrrr.s.rc.rumai, Mr.B.V.K.Ahluwalia and Ms.Rita Hingmang, UNION OF INDIA & ORS, Through: Mr. Ashwani Bhardwaj, Mr. Manoj Ohri, Mr. Hemant Gupta, Mr. puneet . Khurana, Ms.Monica darg,'n4r.Snuti. Hasan, Mr.Amiet Andley, Mr. Saroj. eidaw"jt, Cof . R. Balasubiamaniam,Mr. Aakash pratap, M;.' garkha Babbar, Ms. Sonia Mathur, Mr. pankaj 'Aatri, Ur. nnit Gautam, Mr. M.M. Beg,. Mr. Saleem Ahmed,'l4s,Shilpa Singh, Mr.yogesh Varma, Mr.prakasir Krmur, WP (C) No.5946 of 2007 ond other connected motters Page 2 of 8 t8 Mr.Jaswinder Singh, Ms. Monika Garg, Mr. Gaurav Liberhan, Mr.Rohit lvlalik, Mr.Jatin phawanl Mr. M.Y. Khan, Mr--Amiet Andlay, Mr. S.M. 2ulfiqar Atam, lvis.jyoti Singh, [4r. Ankur chhiffin, Mr.Pankaj Batra, Mr. saleem Ahmed with Mr. Habidur Rahman, Mr..Sanjay Katyal with Mr. Ranjeet KumarJha, It4r. Vikas Sethi wiilr 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 Vtishra, Mr. Jai Bansal and Mr. VivekSingh, Advocates, proxy for Ms. Madhu Sharan, Mr. Sanjay Katyal, Mr. R.V. Sinha, Mr. A,S. Singh-and Mr.puneet Khurana, Advocates arong with coioner G.s.Aur _and_-rualo,r 's.s. . Advocates for the Respondents. CORAM: HOh|'BLE MR. JUSTTCE SANjAy KtsHAN r\AUL HON',BLE MR. jUST|CE MOOL CHAND GARG 1. Whetlrer 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? 1. The common question r,vhich arises for consideration in this batcir of petitions is as to vrilreilrer an army personnel could have been discharged from iervice 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 shourd stay its hand till the authoritative .pronouncement of the supreme court is available on this aspect. we may also note that interim orders u/ere granted by this court, but the supreme court vacated the interim orders and in view thereof a general WP (C) 11o.5946 of 2007 ond other cannected matters Foge j of 8 5 /l I interim order was passed by this court on 14.05.200g 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 derivered a judgment in civil Appeal No,6587/2008 in Union 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 conclition precedent for discharge of a Junior Commissioner Ol-.ficer (,JCO,) on. account of low medical category. 3. we may add here that this principre 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 clischarged from service without holding an lMB. The resuit of the aforesaid judgment is that all petitions 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 72.04.2007 directing discharge of all the personnel in Low Medical category without holding the rMB is quashed. ii) The petitioners.who stand discharged as a consequence of the afofesaid order are entiiled to be reinstated with all A ) the present WP (C) 1,to.5946 of 20O)' ond other connected motters Irnn. A ^f I b consequential benefits including continuity of service, pay and allowances and seniority as per the rulesr... .--..-.-.--.- 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 n€66ritr 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 applicabre 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 AGIF and if they seek to re-join naturally they have to refund the amount. However, they are also entitled to be pqid tfi.e p'aVranO."atjowances..,T 1;i.1; ;;ii,.1' ...-.,1 .i ne! enor nt has ;;tliii#i']i;ffi*.r#illl I; let ifeqif, I'o' i0,Fa l"fy19u1'pnlfi;hii::irie ielpo1oenti wiri inforrh such personb'about the'n'et ambunt which has to be refunded back by them and the amount be remitted by such persons within 30 days of intimation'of the amount to be remitted back by them, --' .fv) In respect of aforesaid direction (iv), if the balance amount.is'not remitted back to the respondents, it will be deemed that such petitioners have accepted their discharge. vi) ln case of the. petitioners who hdve'not been discharged, naturally the occasioh to discharge them now would not arise without holding the lMB, : WP (C) No,5g46 of 20O7 and other connected motters Poge 5 of 8 vii)The respondents are not precluded from holding the lMBs --- . - ---after sue'h ioining in accordance with law as per the Army Art,\ I 1950, The Army Rules, J954 and Army lnstructions. ' viii) In view or the passage of timd from the date of discharge till the date of rejoining, it will be open to the respongents 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 discharged 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 ].2.o4.2oo7 and is in proximity of time. ln order to giye option to. such . other ' persons .ryho-. may not frave i -- approached the court till now arising ab a conseqr_ience of the judgmeryt of the Supreme Court ang to avoid such unnecessary spate . of .litigation before this court, it has become necessary to issue certain further general directions even.in. respect of the pBoRs who have not approached any court tilt date, This is not only in the interest of such persons but also" in' the interest of the respondents and to avoid . unnetessary huge litigation. 7. Insofar as the aforesaid persons are concerned, the ,' fcillowing directions are issued: i) Individual 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.s9a| of .2007 ond oth.er connected motters Poge 6 of 8 present writ petitions. The option letter will indicate that such '74-, optionhastobeexercisedwithinaperiodof30daysofthe receipt of the letter.-and-in' case the retiral and pensionary benefits have been paid to them, such persons must rejoin along with the aniount liable to be refunded by them to the resp.ondents 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 all the directions made in resPect 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 !2.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 petitioners, whose 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 fromtheprematuredischarge.Need|esstosaythatthose 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. wP (C) No.5g46 of 2007 ond other connected motters will also be governe.d bY of the petitioners herein I Poge 7 of 8 The petitions stand allowed with the aforesaid directions. a> CM 77112008 in WP(C)38912008 ln view of the disposal of the writ petition, the application does not survive for consideration and the same stands disposed of, aff SANJAY KISHAN KAUh-j,- NOVEMBER 20, 2OOB dm MOOL CH WP (C) No.S946 of 2007 ond other connected motters Page I of I