CWP No. 10876 of 2008 (O & M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. CWP No. 10876 of 2008 (O & M) Date of decision: December 18, 2008 Dashrath Maurya --- Petitioner Versus Union of India & others ---- Respondents CORAM: Hon'ble Mr. Justice Ashutosh Mohunta Hon'ble Mr. Justice Rajan Gupta Present: Mr. GS Sathi, Advocate, for the petitioner. Mr. Ram Chander, Central Govt. Standing Counsel for Union of India/respondents. Ashutosh Mohunta, J (Oral). CM No. 24587 of 2008 The petitioner has filed this application for listing this case as the same is covered by the decision of Hon'ble Apex Court in Civil Appeal No. 6587 of 2008 ( arising out of S.L.P.(C) 6037 of 2007). CM is allowed. The case is taken up for hearing. CWP No. 10876 of 2008 Written statement filed on behalf of the respondents in Court today is taken on record. The petitioner is aggrieved against the order dated 15-1- 2008,Annexure P1, vide which he has been ordered to be discharged from Army service without holding of Invaliding Board. While issuing notice of motion, discharge of the petitioner CWP No. 10876 of 2008 (O & M) 2 from service was stayed. It is stated that in pursuance with the said interim order, he is continuing in service. The only question involved in this writ petition is whether the holding of Invaliding Medical Board is the condition precedent for discharge of personnel below officer rank (PBOR) on account of low medical category? The petitioner, who is admittedly personnel below officer rank, is sought to be discharged from Army service without holding of Invaliding Board. Counsel for the Union of India does not dispute this factual position. Counsel for the petitioner submit that the question whether it was mandatory for the respondents to hold Invaliding Board before discharging the personnel below officer rank, came up for consideration before the Hon'ble Apex Court in Civil Appeal No. 6587 of 2008 ( arising out of S.L.P.(C) 6037 of 2007) titled Union of India & others Vs. Rajpal Singh, wherein while upholding the judgment of Delhi High Court, it was held as under: “In view of the foregoing interpretation of the relevant rule, we are in complete agreement with the High Court that where a JCO is sought to be discharged on the ground of medical unfitness for further service, his case has to be dealt with strictly in accordance with the procedure contemplated in Clause I (ii) in Column 2 of the Table appended to Rule 13. The Rule prescribes a particular procedure for discharge of a JCO on account of medical unfitness, which must be followed and, therefore, any order of discharge passed without subjecting him to Invalidating Board would fall foul of the said statutory rule.” In view of the above, it is held that the discharge of the petitioner is not in be accordance with the prescribed procedure. Accordingly we allow all this writ petition, set aside the order of discharge. The respondents are, however, not precluded from holding the Invaliding Medical Board in accordance with law as per CWP No. 10876 of 2008 (O & M) 3 the Army Act, 1950, The Army Rules, 1954 and Army Instructions. [Ashutosh Mohunta] Judge [Rajan Gupta] Judge December 18, 2008 `ask'