ir rN THE HIGH couRT oF DELHI AT NEW DELHI \) . Date of decision: 20.11.200g + wP'C\ Nos: 5_949t2007, 9382t20o7 , 9389t20o7 , 945412007 , +ouzooa. qe=gGgg_Bj. rqralzooa, r++rlzm, . ntanooe, ?g?gtzooe, zl:.ztzooa, zoiam, 268212009. ?0e:lzoos, z0e+lzooa, :roelz@. ?722t2008. 3159t2008,. 3245t2008, 332s12OOB. 624t2008, ?E91/2008. 3se2/2008, 3se3/2008.3se4/2008,t626{200& ?gqy]gog. 2r63sQ t. gzgarzoot. .z-ot?ooa, +gzrzooe, totm. tzl.+tzgoa, tztztzooe, ]3tetzooa, ]3ga,zooa. ]3sstzoo}, 1439t2008, r473t2009, 1668-167 u2008, L67 3t2OO8, 2B2dOO8, ?933t200s. zT43-2t46r2008. zr4gtzoo}, 2306,2008, t4o4t2oog, 9_3,!2t.?99L. 6s8trs86, 6e4st200s. 737Lt2007 , 7e64t2ov . e211_ ?283t2OO7 , 8.+?5t2OO7 , 8429t2007 . 8467 t2OO7 . 8488t20W . ?4g9tzoo7 , stostzoot, etzqtzoot . etzotzo,i, BTs].tzow . . 880812007 , 8847 t2007 , ggazlzoot , gtot p_aot , gtoSt2ow . ?137 t2007 , 9ts3t2007 , 9164t2007 , 9r72t2OO7 , 92s4t20}7 , gZt_glzoot , gstetzool , garclzool . gizotzoot , gazq,zoo1 , s625t2007, 9648t2O07, 83_86t2O08, 1"Ls_t2Ot2OO8,_:SrtZqa& 159/2008. .__. 186/2008, .. _ 2t9t2008- 27_0t200a,zgotzooa,zqoizooa.zsuzooe, . zsztzoos, . 3s7 t2008, s0Zi200B, 513/2008,'52112008, 53s/2008J 53612008. 538/2_008, .24u2008. s62t2008, s69t2008, s1rt20o8, 587 tzool, 626Z0A8, 947 r200e, 6s5t2008, 672t2008. 693t2008. 73712008, 7 43l2o6id, 7=8.4t?008. 78gt?Q08, 8O4|2OOQ. 824t2OO8. 83O12OO8', $4trOOB, 844l2ooe, ee?l?goa. gzglzoos. g:olzooe, g3M. ?3!t?Q08, e4otzoog, eLuzoog. e43tzoo9, s6o/^o1. sertzoo}. 9A9t_2008, 97 ltzo}B. 97zt2o0g. 975,2008, 97 6t20o1, Lo61l2ooa. 1073/2008, 1140/2008. 1146/2008, 1182/2008, 118ti2008, 1?94/2008. 1208/2008. 1273l2008, 12BB/2008, 13s11200-, r:euzooe. r:szlzooe, r:gzlzooe, rar+iz00g. 14ts/2009. !41_9t.4998. r+tgtzooa. Mzorzooa, r+zttiool, r42ztzoos. 113_6/2008. 1609/2008, 1618/2008, 16ss/t00a 1680/2008. r69zt2009, i6s3tz00s, t6s4tz0o}, 17 24tr668,-uzstzo}s. 17 ?7 t2008 . 17 2e t2008 , 17 30 t2008 . t7 3u2O0B , 17 38t2008 , !739t20O8, . +7 +O'20O8, t7 4u20o8. 17 44t20O8, i7 45t2008, t7 46'^008. +!!7 t.?ggg, t7 stzoos. t7 4si2ooy. r768t2oo}, vtorzooa. +gtazooa. zozatzooa. zoqm. 2057 t2008. 2209t2008, 2277 t2008, 228tt2008. 2320t2008. ??4|?QQB, 234012008, 2345t2008, 2373t2008. 237 4t200s, :, zzlgrzooe. 238u2008, 2382t2008, 2383t29O8, 2SS+129O8. 238s/200A ?Z?t rzooa. zstzrzooa. 25 re9u2008, 2699t2008, 270512008. 2709t2008. 2727 t2OO8, 7 t?_008, 2845t2008,. otzooe. 286im 79t2008, 2881/2008. 2945 l99F/?008, 143s/2008, e1s2l2007, 166e-70/20Q8. 2814/200A 3747 t2008. 3784t2008, 3s62t2008, 4o0or20o}, 4662t2008, WP (C) No,5946 of 2O07 ond 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 -820 Through: Major K. Ramesh, Mr. Amol Rattan Singh, Ms. Neelam Rathore, Col. S.R. Kalkal, Mr. Rajeev Anand, Mr, C.M. ' Khanna, Mr. Viraj R. Datar, Col. C.K. Sharma, Col. A.S. Chauhan, Mr. Mohan Ki:mar, Mr. N.L. 6areja, Mr. Hitender Sakkarwal, Mr.Sudhir Mittal, Mr. EJ. Vaighese, Mr. Kuljiwan Goyal, Mr. Alok Kishor, Mr. Kundan (umar, Mr. Anil Kumar pandey, Mr. Rajeev Anand, Mr. B.p. . Shukla, Mr. S.M. Dalal, Mr. D.S. Kauntae, Mr.Sournyajit . Pani, Dr.Alok K.Sharma, Mr.R.D.Tybgi, Captain K.M.Saxena, Ms. Rekha palli with Ms. punarnsingh, '. Mr. S.L, Kumar with Mr, B.K, Ahluwalia, Col.S.S.Chhawal, Mr' A.K. Bakshi with Mr. Romesh Gautam, Ms.Bandana Shukla, Mr.R,K.Sharma, Mr.Aagney Sail' & Mr.Abhik . Kumar, Mr.M.S.Sasan, Dr.R.S.Sasan, Mr.A.K.Trivedi, Ms.Jagrati Singh for Mr. M.K.Bhardwaj, Mr.S.K.Kumar, Mr.B.V.K.Ahluwalia and Ms.Rita Hingmang, SUBEDAR(SICI-) PUTTAN LAL AND OTHER CONNECTED PETITIONERS ... PETTTTONER(S) Advocates. for the petitioners. Versus ...RESPONDENTS UNION OF INDIA & ORS. Through:' Mr. Ashwani Bhardwaj, Mr. Manoj Ohri, Mr. Hemant Gupta, Mr. puneet. Khurana, Ms.Monica Garg, ur.shariir Hasan, Mr.Amiet Andley, Mr, Saroj Bidawlt, Col. i. Balasubiamaniam,Mr. Aakash pratap, Ms. Barkha Babbar, Ms- sonia Mathur, Mr. pankaj Batra, rvrr. Anir . Gautam, Mr. M.M. Beg,. Mr. Saleem Ahmed, Ms.Shilpa Singh, Mr.yogesh Varma, Mr.prakash fJm5r, WP (C) No.5946 of 2OO7 and other connected motters Poge 2 of 8 \T Mr.jaswinder Singh, Ms. Monika Garg, Mr. Gaurav Liberhan, Mr.Rohit tvlalik, Mr.Jatin ohawanl Mr. M.Y. l'..han, Mr__Amiet.Andlay, @ Ivls.jyoti Singh, tr4r. Ankur chhimingh, Mr.Pankaj Batra, Mr. sareem Ahmed with Mr. Habidui Rahman, Mr..S.anjay Katyal with Mr. Ranjeet KumarJha, It4r. Vikas Sethi wiilr Ms, Nlaninder Acharya, Mr. Rajan Sabharwal with Ms. Seema Bh-adauriya, Mr. Pushkar Sood with Mr. Varun Kathuria, ' Mr. Sewa Ram with Mr. R.K. Bachchan, Mr. Dalip Mehra with Mr. Rajiv Ranjan wtishra, Mr' Jai Bansar and Mr. Vivek singh, Advocates, proxy for Ms. Madhu Sharan, Mr. Sanjay katyal, Mr. R.V. Sinha, Mr. A,S. Singh and Mr.puneet Khurana, Advocates along with coroner G.s.Aur and_."Maio"r s.s. . Advocates for the Respondents. CORAM: HON'BLE tVlR. JUSTICE SANJAY KISHAN KAUL HON'BLE IVIR. JUSTICE 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? SAlllAY KISHAN f..AU_L, l. (ORAL) 1. The common question r,,vhich arises for consideration in this batclr of petitions is as to wlreilier an army personnel could have been discharged from service without holding the lnvaliding 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 issuecl directions that this court should stay its hand till the authoritative pronouncement of the supreme court is available on this aspect, we may also note that interim orders \ffere granted by this Court, but the Supreme Court vacated the interim orders and in view thereof a general WP (C) 1,1o.5946 ol 2007 ond other cannected motters Foge 3 of 8 1N interim order was passed by this court on 14.05.2.00g 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. The supreme Court has delivered a judgment in civil Appeal No.6587/2008 in union of India & ors v. Raipal sinqh on 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 condition precedent for discharge of a Junior Comrnissioner Ol-ficer (JCO,) on' account of low medical category. we may add here that this principle 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 resuii of the aforesaid judgment is that all the present petitions are liable to be allowed. 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 !2.04.2007 directing discharge of all the personnel in Low Medical Category without holding the tMB is quashed. ii) The petitioners who stand discharged as a consequence of the aforesaid order are entiiled to be reinstated with all 2. 3, 4 5. lltP (C) 1,to.5946 of 200i ond other connected motters Itnne A nf I WP (C) No,59a6 of 2M7 and other connected motters consequential benefits including continuity of service, pay and all6wances and seniority as per the rules,.-. :...--.. -.:-.. \ 1 I 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€fittt to such of the petitioners who have not been paid the pension and retiral benefits including by AGIF arising rrom, the discharge order will be remitted . within a maximum period of three months from tod'ay. Naturally, this would be applicable only to such of the petitioners who join within the aforesaid time. iv) Therb are cbrtain 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 .:, 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. ' -'' v) ln respect of aforesaid direction (iv), if the balance amount.is not remitted back to the respondents, it will be deemed that such petitioners have iccepted their discharge. vi) ln case of the. petitioners who have not been discharged, ' t't naturally the ogcasion to discharge them now would not arise without holding the tMB. Poge 5 of 8 ' vii)The respondents are not precluObC from holding the lMBs --.after sue.h ioining in accordance with law as per the Army Act, 1950, The Army Rules, 1954 and Army Instructions. viii) ln view of the passage of timd from the date of discharge till the date of rejoining, it will be open to the respondents 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 I 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 petitipns befbre this Court. Such policy decis.ion was taken on 12.04.2007 and is in proximity of time. In order to -1 ",'- . - apProached the Court till now'arising as a conseqrience ottne::' ' judgment of the supreme court and to avoid such . unnecessary spate of litigatiori/bsfore this court, it has become necessary to issue certain further general directions , /' ' even in respect of the pBoRs who have not approached any Court till date. This is not only in the interest of such persons " but also in the interest of the respondents and to avoid r unneiessary.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.5946 of 2OO7 ond other connected motters Poge 6 of b present writ petitions. The option letter will indicate that such option has to be exercised within a period of 30 days of the receipt of the letter'-an+ in case the retiral and pensionary benefits have been paid to them, such persons must rejoin along with the amount liable to be refunded by them to the respondents 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 will also be governgd by all the directions made in respect of the petitioners herein 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 12.04.2007 or those who. may have been discharged earlier Fut 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 nas atready arrived or would arrive before the aforesaid option is issued. ln 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 from the premature discharge. Needless. to say that those 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. a/ wP (c) No.5946 of 20O7 ond other connected motters Poge 7 of I tu The petitions stand allowed with the aforesaid directions. CM 77112008 in WP(C)389r200b ln view of the disposal of the writ application does not survive for consideration stands disposed of. NOVEMBER 20, 2OOB dm petition, the a and the same WP (C) No.S946 of 20O7 ond other connected motters Page 8 of I