Case: Smt Sulekha Rani Vs. Union of India and Ors

3. The spouse of the appellant was enrolled in the Army on 23 April 1994. He was posted at the Siachen Glacier from 13 September 1998. He was in SHAPE 1 medical category. On 30 August 2000, he was downgraded to low medical category  P2. He was then shifted to a counter insurgency area in Jammu and Kashmir on 19 November 2000. On 31 August 2001, he was discharged from service. About 6 years after the discharge, he died on 30 September 2007, leaving behind him the appellant and their children. A proceeding was initiated before the AFT for the grant of pension. This was denied to the appellant

Reasoning: 6. In the present case, it is not in dispute before this Court that no Invalidation Medical Board was held. The show cause notice upon which reliance has been placed is dated 2 March 2001 and reference is made to Rule 13(3) (III) (v).Rule 13(3) (III) (v) is in the nature of a residuary provision. It covers all other classes of discharge or, in other words, discharge which does not fall under the preceding categories. The specific provision in regard to medical unfitness is provided in Rule 13(3)(III)(iii) where a person has been found medically unfit for further service. The manner of discharge provided is, ?only on the recommendation of an Invalidating Board?. The provision contained in Rule 13(3)(III)(iii)(a) which provides for a discharge on the recommendations of the Release Board was inserted on 29 May 2010 and hence, has no application to the present case.After considering the facts and material before us, we are of the view that the discharge of the appellant?s 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.11. Having weighed the nature of the relief that should be granted to the appellant, we are of the view that the case of the appellant for grant of family pension deserves to be accepted. We direct that for the purposes of computing the family pension, the service of the deceased spouse of the appellant should be deemed to have continued until 30 September 2007. No arrears of wages shall be payable between the date of discharge and the date of death. The arrears of family pension shall be paid to the appellant within a period of three months from the date of receipt of a certified copy of this order. The appellant is accordingly held to be entitled to family pension on the above basis.