Case: EX.SEPOY (WASHERMAN) RAM KHILAWAN Vs. UNION OF INDIA

in the public interest, and that their retention will not exceed the sanctioned strength of the regiment/corps. When such an appointment is not available or when their retention is either not considered necessary in the interest of the service or it exceeds the sanctioned strength of the regiment/corps, they will be discharged irrespective of the service put in by them. (b) Ordinarily, permanent low medical category personnel will be retained in service till completion of 15 years service in the case of JCOs and 10 years in the case of OR (including NCOs). However, such personnel may continue to be retained in service beyond the above period until they become due for discharge in the normal manner subject to their willingness and the fulfilment of the stipulation laid in sub-para (a) above.?7. Learned counsel for the appellant relied upon judgment of this Court in Union of India & Ors. v. Rajpal Singh (2009) 1 SCC 216 wherein, this Court has held that if a person is to be discharged on the ground of medical unfitness, such discharge cannot be passed without subjecting him to the Invalidating Board as per procedure laid down in Rule 13. The Court held as under:?30. A plain reading of the Army Order shows that it comes into operation after an opinion has been formed as to whether a particular personnel is to be retained in service or not, if so for what period. If a person is to be retained in service despite his low medical category for a particular period as stipulated in Army Order 46 of 1980, the question of subjecting him to the Invalidating Board may not arise. However, if a person is to be discharged on the ground of medical unfitness, at that stage of his tenure of service or extended service within the meaning of the Army Order, he has to be discharged as per the procedure laid down in Clause I(ii) in Column 2 of the said T able.?8. In the present case, the order of discharge is on the ground that the appellant has been placed in Low Medical Category. The extract from the order of communication of discharge reads as under:?1. The personnel mentioned in Appendix ‘A? to this letter have been placed in Low Medical Category lower than ‘AYE? ad become due for x discharge from service as per policy on discharge of permanent low medical category personnel laid down in Army Order 46/80. They will report to Depot Coy HQ Wing ASC Centre (South), Bangalore-7 and SOS from service w.e.f. the dates shown against their names. No joining time is admissible.?9. The argument of learned counsel for the respondents is that the discharge of the appellant was under clause III(v) of Rule 13(3) of the Rules and, therefore, the question of subjecting the appellant to Invalidating Medical Board does not arise. It is argued that such is the case admitted by the appellant in his statutory complaint as well. 10. We have heard learned counsel for the parties and find that the discharge of the appellant was only under category 13(3)(III)(iii) as he has been found medically unfit for further service. Clause (v) of Rule 13(3)(III) would be applicable in respect of all other classes of discharge which do not find mention in Rule 13(3)(III). The communication of discharge from the service is on the ground that he has been placed in the Low Medical Category. Once he has been put in Low Medical Category, clause (iii) of Rule 13(3)(III) would be applicable as such clause alone deals with discharge if any personnel is found medically unfit for further service. There is no reference to sub-clause (v) of Army Rule 13(3)(III) in the order of discharge. Still further, it is not the recital of a provision which is relevant to determine as to whether the personnel is discharged under clause (v) or clause (iii) of Rule 13(3)(III) of the Rules. It is the object, language and the purport of the discharge which will be relevant to determine whether an army personnel had been discharged under clause (iii) or clause (v). Clause (v) is the residual clause when other clauses are not applicable to such personnel. Since the discharge of the appellant is covered by clause (iii) of Rule 13(3)(III) of the Rules, as the discharge of the appellant was only on the ground of his medical unfitness for further service, therefore, he could not be invalidated out of service without the recommendation of the Invalidating Board. 11. This Court in Smt. Sulekha Rani v. Union of India and Ors. (Civil Appeal No. 1280 of 2019 decided on July 16, 2019) held that when the discharge was on the ground of medical unfitness, the Rule prescribes a particular procedure for discharge. Thus, an order of discharge passed without subjecting the officer to an Invalidating Board would be contrary to the statutory rule. The Court held as under:?10. After considering the facts and material before us, we are of the view that the discharge of the appellants spouse without convening an Invalidation Medical Board suffers from an illegality. The respondents have relied upon the response purportedly addressed by the Jawan to the notice to show cause issued to him. The provisions Rule 13(3)(III)(v) upon which reliance has been placed had no application to the case. It would not operate in an area which is covered by medical unfitness.?12. Therefore, we find that discharge of the appellant was not under the residual clause (v) but under clause (iii) of Rule 13(3)(III) of the Rules. Since the discharge has proceeded without reference to Invalidating Medical Board, such discharge is not legally sustainable. 13. Having said so, in terms of clause (b) of General Principles of Army Order 46 of 1980, he is entitled to be retained for ten years being in the rank of personnel of Other Ranks. Since, he joined the service on October 23, 1987, he would be deemed to be discharged only on October 22, 1997.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]10. We have heard learned counsel for the parties and find that the discharge of the appellant was only under category 13(3)(III)(iii) as he has been found medically unfit for further service. Clause (v) of Rule 13(3)(III) would be applicable in respect of all other classes of discharge which do not find mention in Rule 13(3)(III). The communication of discharge from the service is on the ground that he has been placed in the Low Medical Category. Once he has been put in Low Medical Category, clause (iii) of Rule 13(3)(III) would be applicable as such clause alone deals with discharge if any personnel is found medically unfit for further service. There is no reference to sub-clause (v) of Army Rule 13(3)(III) in the order of discharge. Still further, it is not the recital of a provision which is relevant to determine as to whether the personnel is discharged under clause (v) or clause (iii) of Rule 13(3)(III) of the Rules. It is the object, language and the purport of the discharge which will be relevant to determine whether an army personnel had been discharged under clause (iii) or clause (v). Clause (v) is the residual clause when other clauses are not applicable to such personnel. Since the discharge of the appellant is covered by clause (iii) of Rule 13(3)(III) of the Rules, as the discharge of the appellant was only on the ground of his medical unfitness for further service, therefore, he could not be invalidated out of service without the recommendation of the Invalidating Board.This Court in Smt. Sulekha Rani v. Union of India and Ors. (Civil Appeal No. 1280 of 2019 decided on July 16, 2019) held that when the discharge was on the ground of medical unfitness, the Rule prescribes a particular procedure for discharge. Thus, an order of discharge passed without subjecting the officer to an Invalidating Board would be contrary to the statutory rule. The Court held asAfter considering the facts and material before us, we are of the view that the discharge of the appellants spouse without convening an Invalidation Medical Board suffers from an illegality. The respondents have relied upon the response purportedly addressed by the Jawan to the notice to show cause issued to him. The provisions Rule 13(3)(III)(v) upon which reliance has been placed had no application to the case. It would not operate in an area which is covered by medical unfitness.Therefore, we find that discharge of the appellant was not under the residual clause (v) but under clause (iii) of Rule 13(3)(III) of the Rules. Since the discharge has proceeded without reference to Invalidating Medical Board, such discharge is not legally sustainable.Having said so, in terms of clause (b) of General Principles of Army Order 46 of 1980, he is entitled to be retained for ten years being in the rank of personnel of Other Ranks. Since, he joined the service on October 23, 1987, he would be deemed to be discharged only on October 22, 1997.