IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1046 of 2009 PRAVIN KUMAR, son of Ramanak Thakur, Resident of Village Bedaul Asli, P.S. Aurai, Distt. Muzaffarpur. Versus 1. THE UNION OF INDIA through the Secretary, Ministry of Defence Government of India, New Delhi. 2. The Commanding Officer 5004 Army Supply Core Battalian C/O 56 APO. 3. The Commanding Officer 2 Try Battalian Army Supply Core Centre (North) Paharpur Gaya-5. 4. with LPA No.1013 of 2009 JAGAT NATH VERMA son of Shri Ram Chandra Prasad resident of Vill. Gopalpur, P.S. Magadh Medical College, Distt. Gaya. Versus 1. THE UNION OF INDIA through in Secretary, Ministry of Defence Government of India, New Delhi. 2. The Secretary Ministry of Defence, Government of India, New Delhi. 3. The Commanding Officer 5131 Army Supply Core Battalian (AM) ACO 56 APO. 4. The Commanding officer 2 TV Army Supply Core Centre (North) Paharpur Gaya-5. with LPA No.1026 of 2009 ASHOK KUMAR, S/O Late Sukh Nandan Prasad, Resident of Nannigyan Bigha, P.S. Kako, Distt. Jehanabad. Versus 1. THE UNION OF INDIA through in Secretary, Ministry of Defence Government of India, New Delhi. 2. The Secretary Ministry of Defence, Government of India, New Delhi. 3. The Commanding Officer 5131 Army Supply Core Battalian (AM) ACO 56 APO. 4. The Commanding officer 2 TV Army Supply Core Centre (North) Paharpur Gaya-5. with LPA No.1057 of 2009 SHATRUGH KUMAR, S/O Suraj Mal Singh, resident of village Jakhaura, P.S. Haspura, Distt. Aurangabad. Versus 1. THE UNION OF INDIA through in Secretary, Ministry of Defence Government of India, New Delhi. 2 2. The Commanding Officer 5131 Army Supply Core Battalian (AM) ACO 56 APO. 3. The Commanding officer 2 TV Army Supply Core Centre (North) Paharpur Gaya-5. ----------- For the Appellants: Mr. Y.V. Giri, Sr. Advocate, & Mr. Ashok Kumar Choudhary, Mr. Anil Kumar Singh, No.6 And Mr. Anirudh Kumar Sinha, Advocates. For the Respondents: Mr. Sarvadeo Singh, Advocate. ……………. 8 19.04.2011 The above appeals have been filed against the common order dated 30.6.2009 passed in C.W.J.C. No.7564 of 2002 and other analogous cases. The appellants herein are petitioners in the writ petition. The cases of the appellants are that they were duly enrolled in the Indian Army as Mt/ driver in the core Army after undergoing all the physical test and medical test as per recruitment rules held at Army Supply Core (North) Paharpur, Gaya and thereafter they have completed training and posted at 554 Army Supply Battalion, Sikandrabad. Subsequently they have been transferred to 5131 ASC Battalian, Srinagar. It is the case of the appellants that they were sent in Kargil Fight and have been provided all the facilities as an Army Soldier for the last seven years and they were also given their next increment in November, 2001, but surprisingly they received discharge certificate on 9.1.2002 stating therein that they have been found invalidate out of service on medical ground with effect from 9.1.2002 (Annexure- 1). The writ petitions were filed questioning the aforesaid 3 discharge certificates on the ground that such certificates were issued in violation of the conditions contained in Section 23 of the Army Act, 1950. It was further contended that before issuing such discharge certificate no notice was given to them, inasmuch as, no reasons has been assigned for invalidating their services and therefore such action of the respondents authorities is in violation of the principles of natural justice. It has been submitted on behalf of the respondents before the learned Single Judge that the appellants were directed to appear before the Medical Board in pursuance to the instruction issued by the Central Government as per rule and regulation of the Army and they were appeared before the Medical Board and after examination the Medical Board found them unfit and therefore discharge certificates were issued to the appellants. After hearing counsel for both the parties the learned Single Judge did not agree with the submissions made by the writ petitioners, appellants herein and dismissed the writ petitions. Hence these appeals have been filed. It has been contended before us by learned counsel appearing on behalf of the appellants that the appellants were duly enrolled in the Indian Army and after seven years of their services it was found that enrolling officer had not signed the enrolment document of the appellants for which, according to the counsel, the appellants cannot be penalized. It has been further contended that the discharge certificates have been issued violating the rules 4 and regulations of the Army for the reasons that they have been acted on the basis of the certificate issued by the Medical Board which does not indicate that they have been found unfit for other services, i.e. ground services in the Army. Per contra, learned counsel for the respondents has submitted that as per executive instructions the appellants were directed to appear before the Medical Board and the Medical Board after examination found them unfit for employment in Army and on the basis of which they have been discharged from service. We had the occasion to go through the provisions of the Army Act and Rules. Sections 13 and 14 deals with procedure before enrolling officer and mode of enrolment. Section 15 is with regard to validity of enrolment which is extracted hereinbelow:- “Every person who has for the space of three months been in receipt of pay as a person enrolled under this Act and been borne on the rolls of any corps or department shall be deemed to have been duly enrolled, and shall, not be entitled to claim his discharge on the ground of any irregularity or illegality in his enrolment or on any other ground whatsoever; and if any person, in receipt of such pay and borne on the rolls as aforesaid, claims his discharge before the expiry of three months from his enrolment, no such irregularity or illegality or other ground shall, until he is discharged in pursuance of his claim, affect his position as an enrolled person under this Act or invalidate any proceeding, act or thing taken or done prior to his discharge.” Section 23 of the Army Act, 1950 deals with the certificate on termination of service which is extracted hereinbelow:- “Every junior commissioner officer, warrant 5 officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate, in the language which is the mother tongue of such person and also in the English language setting forth- (a)the authority terminating his service; (b)the cause for such termination; and ©the full period of his service in the regular Amy. From a perusal of the aforementioned provisions, it appears that the word „ Commissioned Officer‟ has been used in the above sections, but the appellants are not defined as an officer hence these provision cannot be made applicable in the cases of the petitioners, appellants herein. It is made clear that the respondents have not produced the rule and regulation of the Army before this Court inspite of the several adjournments granted by this Court. However, from a perusal of the records it appears that the action of the respondents in discharging the appellants from service on the basis of report of the Medical Board in pursuance to the instruction issued by the Central Government for regularization of their services is not liable to be sustained in the eye of law as the report of the Medical Board does not indicate that the appellants are unfit for other services, i.e. ground service, in the Army. Under the above circumstances, we quash the discharge certificates of the appellants and the matter is remitted back to the respondents to reconsider the matter afresh and accommodate the appellants on a post not related to driving. Such 6 decision must be taken within a period of three months from the date of receipt of a copy of this order. With the above observation, order of the learned Single Judge is set aside and the appeals are accordingly allowed. Abhay Kumar ( T. Meena Kumari, J.) (Akhilesh Chandra, J.)