frj- i! lL * IN T}IE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 20.11.200g 1ZZ9lr0oB, ?q$:- 2008. 31s1/2008 -64:b0d 626t2008 636t2Q0s, ]-74 9 e0aaooz, 9648/200?, 83_8 2Igna08,. =z ? g ? 9 o g . z g orz g g g, : o_Grr_ o, _o q@ o o r, r r r,, o o r. p71?009. s13/?ggg !4,?0 , g:z4zggg, g+gr?goe. 9998/4ggz, e84Z{?ggz, ?!37_t?9Q7 . ets?.Q=o_gJ. er64 999 f,g g g'. e7 0,2 g=09._ ?22l2 o08l LO73t2008, LL40t2008, Tt46l2oOg, 1182/2008 fi R?/?nnR +1391299q. -1q991 6, 739t2008, . L740t2oog, 17 Lr=r=v?=o _a?, r8t=6 EO_O-8 008, 2767 . 3747'.008, 379412009. re4r2988- 373s/2008 91+e4?oa_7, 6e8,rgPg. gs4s ^oo e283120o7 , 842512007, gqmnooi .--g,a67 qor.:. edea/"n^z WP (C) No.S9aG of 2007 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 1T 81 81 SUBEDAR(SKN PUTTAN LAL AND OTHER CONNECTED PETITIONERS ...PETtTtONER(S) : 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 Kumar, Mr. N.L. Bareja, 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.Tyagi, 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, MsJagrati Singh for Mr. M.K.Bhardwaj, Mr.S.K.Kumar, Mr.B.V.K.Ahluwalia and Ms.Rita Hingmang. Advocates for the Petitioners. Versus UNION OF INDIA & ORS. Through: ...RESPONDENTS 008 200 820 Mr. Ashwani Bhardwaj, Mr. Manoj Ohri, Mr. Hemant Gupta, Mr. Puneet. Khurana, Ms.Monica Garg, Mr.Shakir Hasan, Mr.Amiet Andley, Mr. Saroj' Bidaw-at, Col. R. Balasubramaniam,Mr. Aakash pratap, Ms. Barkha Babbar, Ms. Sonia Mathur, Mr. pankal Batra, Mr. Anil Gautam, Mr. M.M. Beg,. Mr. Saleem Ahmed,'Ms.Shilpa Singh, Mr.Yogesh Varma, Mr.prakash Kumar, WP (C) No,5946 of 2OO7 ond other connected motters Poge 2 of 8 W Mr.Jaswinder Singh, Ms. 'Monika Garg, Mr, Gaurav Liberhan, Mr.Rohit Malik, Mr.Jatin DhawanJ Mr. M.Y. K..han, Mr. Amiet Andlay, Mr. S.M. Zulfiqar Alam. ivis.Jyoti Singh, Mr. Ankur chhiffigtr, Mr.Pankaj Batra, Mr. sareem Ahmed with Mr. Habidui Rahman, !lr,.S.anjay Katyal with tvtr. Ranjeet KumarJha, Ir4r. Vikas Sethi with 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 VfishrJ, Mr. Jai Bansal 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 jlroqg with coroner G.s.Aur and-.Malor s.s. @-pondents. Advocates for the Respondents. CORAM: HOt{',BLE IUR. JUSTTCE SANJAY r..tSHAN KAUL HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether 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? SAI.UAY f\ISHAN f..AUL, l. (ORAL) 1. The common question which arises for ionsideration 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 issued directions that this court should stay its hand till the authoritative pronouncement of th; Supreme Court is available on this aspect. we may also note that interim ' orders were granted by this Court, but the Supreme Court vacateC the interim orders and in view thereof a general WP (C) I'1o.5946 of 2OO7 ond other cannected motters Poge j of 8 11 3. interim order was passed by this Court on 14.05.2009 keeping in.mind the orders passed b!, the Supreme Court whereby the 6enefit of stay was restricted to the service personnel continuing in the accommodation provided by the Army. 2. The supreme court has delivered.a judgment in civil Appeal No.65B7l2008 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 holding of an IMB is a condition precedent for discharge of a Juniclr Commissioner Officer (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 hording that the PBoRs could not be clischarged from service without holding an lMB. The resuit of thl aforesaid judgment is that ail 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 12.04.2007 directing discharge of all the personnel in Low Medical Category without holding the IMB is quashed. ii) The petitioners.who stand discharged as a consequence of the' afoiesaid order are entiUed to be reinstated with all 1l-. 5. tyP (C) tto.S946 ol 200; ond otller connecled motters Itnn. a ^{ I . conse-quential benefits including continuity of service, pay and allowances and seniority as per the rules,... ...---.-..-. 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 u66ritr 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 r'emitted within a maximum period of three. months from tod'ay. Naturally, this would be applicable only to such of tne. 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 refun'd .the'amount. However, they are ' " " arsri entiflg{'ro o,e qaio lhq puv uno.,qll.g,ryuJ,ggb:..,rhus,qnry lhe , ;1 ..:=1.-l -''.,'...:..;.".'.. .:,: .:..i,:1::i,.i,li',i ,::';ii.:'_:1,;:;1.:;i;,...; ., i.,..,:,, ... _.; r'"-:-.rrt:.'.1{' i .': ' '- net ambunt'nas tif oe reruiidAA:nV thb:ni,J,it"'" ' - .::.;. - -. . . : . .. "r.. .. u,:-.,,', -, ',!t". lespopdents will .' : " ' ,".' . i .' "{, : -, '., -. -.l,-r:'-t i - ; infofrn 'such persons about th€i:h'ef'aniount which has to be refunded back by them and the uro.;ni be remitted by such . persons within 30 days of intimation of the am.ount 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 p'etitioners who have not been discharged, naturally the oFcasion- to.discharge them now would not arise without holding the lMB. ?n wP"(C) No.5946 ol 2007 ond other ronnected motters Poge 5 of I vii)The respondents are not precluded from holding the lMBs --.after sue-h joi+ing in accordance with law as per the Army Act, 1950, The Army Rules, 1954 and Army lnstiuctions. viii) In view ot 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 respondents. 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 petitipns befbre this Court. Such policy decision was taken on r2.o4.20o7 and is in proximity of time,' ln order to give option to. such other persons qho . mgy not. have QI , - : approached the court till now.arising ab a conseqdence of the . judgment of .the Supreme Court and 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 till date. This is not only in the interest of such persons qut also' in the interest of the respondents and to avoid . unnecessary huge litigation. . 7. , lnsofar as the .aforesaid persons are concerned, the following directions are iss,ued i i) lnoivioual 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.5945 of 2007 and other connected motters Poge 6 of 8 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 lhe 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)tt is made clear that such persons will also be governqd 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 but have ?lieacly 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 airive before the aforesaid option is issued. ln such cases, the persons would be entitled to only the benefit of pay and allowances for the difterential period after adjusting any additional benefit arising from the premature discharge. l'leedless 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. WP (C) No.5946 ol 20O7 ond other connected motters Poge 7 of I The petitions stand allowed with the aforesaid CM 77112008 in WP(Cr389r2Odb + In view of the disposal of the. writ petition, the application does not survive for consideration and the same stands disposed of. NOVEMBER 20, 2OO8 dm WP (C) No.5946 of 2OO7 ond other connected motters MOOL CH Poge 8 of 8