Union Of India & Ors vs Rajpal Singh

3. For the determination of the issue aforesaid, it is unnecessary to delve deeply into the facts of the case and only a few material facts would suffice. These are:

4. However, before the expiry of the said period of two years, a show cause notice was served on the respondent on 27th February, 2002, stating that since he was placed in permanent low medical category, why he should not be discharged from service as no sheltered appointment was available and his unit was deployed in a field area. It was also stated that his retention in service was not in public interest. For the sake of ready reference, the notice is extracted below:

9. Aggrieved by the said order, the appellants filed a Review Petition along with a number of other miscellaneous applications for interim relief. The Review Petition as well as the applications were dismissed on merits as well as on the ground of limitation. The main order dated 7th October, 2005 as well as the order in Review Petition dated 25th January, 2007 are under challenge in this appeal.

8. The High Court, by a well reasoned order, concluded that the discharge of the respondent without holding an "Invalidating Board" in terms of Rule 13 (3) (I) (ii) was illegal. As regards the applicability of Army Order 46 of 1980, which contemplates that the employment of permanent low medical category personnel at all times is subject to availability of suitable sheltered appointment, commensurate to their medical category, the High Court held that before the opinion is formed as to whether a person is to be retained or not on medical grounds, there 6 has to be an opinion of the Invalidating Board to the effect that further retention in service on medical ground is not possible. The question of suitable sheltered appointment commensurating the medical category will be relevant only thereafter. According to the High Court, there is no rule stipulating that as soon as a person is placed in permanent low medical category, it will be presumed that he is unfit for further service. Consequently, the High Court allowed the writ petition; quashed the order of discharge and directed the appellants herein to reinstate the respondent in service.

14.It is pointed out that army personnel are put in the afore- mentioned medical categories i.e. SHAPE on the basis of a periodical Medical Board which is held for an individual after the age of 35 years and thereafter at an interval of every 5 years. If the army personnel is in SHAPE I, he is 12 not required to undergo further Medical Board except annual medical examination. However, the army personnel who is placed in SHAPE II and SHAPE III on the annual medical examination, he is placed in low medical category (temporary) for a period of six months. After six months, he is placed before the Review Medical Board and if at the end of six months, his category remains unchanged, that category is awarded to him on permanent basis and he is placed in "low medical category (permanent)". After award of low medical category (permanent), the army personnel is placed before the Review Medical Board after every two years. In Review Medical Board, the medical category of the personnel may be changed keeping in view the change in any component of SHAPE. Thus, SHAPE II or SHAPE III may be placed in SHAPE I also and vice versa. It is the say of the appellants that the release of certain medical category (permanent) personnel is regulated by Army Order No.46 of 1980, which contemplates that the army personnel, who is placed in low medical category (permanent), is to be retained in service for a minimum 13 period of 15 years (for Sepoy) and 20 years (for JCO) and during this period he is entitled to all promotions as per the rules; the discharge of low medical category is regulated as per the above-mentioned Army Order and before the discharge, the personnel is placed before the "Release Medical Board" for a mandatory examination before the order of discharge is passed. An army personnel who is categorised as SHAPE V is considered to be not fit for further service of the Army and on placing such a personnel in SHAPE V he is mandatorily brought before Invalidating Board in terms of Rule 13 (3), whereas an army personnel who is in SHAPE II or in SHAPE III, is to undergo different Medical Boards apart from annual medical examination. The said personnel are not totally unfit but at the same time they are not fit for all the army duties and, therefore, they are retained for 15 years or 20 years, as the case may be, on the sheltered post mandatorily.

Retention

2. General Principles

(a) The employment of permanent low medical category personnel, at all times, is subject to the availability of suitable alternative appointments commensurate with their medical category and also to the proviso that this can be justified 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.

3. All personnel retained in service in terms of Para 2 above will, under all circumstances, be discharged on completion of their engagement periods/retiring service limits. For this purpose, NCOs and JCOs will be treated as under:-

4. Personnel suffering from pulmonary tuberculosis, including those who may be cured of the disease, will be disposed of in accordance with the provisions of Min of Def letter No. 22679/DGAFMS/DG-3A/2721/D(ME:- dated 18 Jul 74 (reproduced in AO 150/75), as amended/amplified from time to time.

5. Cases of all permanent low medical category personnel will be reviewed by all concerned accordingly. In the case of those personnel who become due for discharge as per the instructions contained in the preceding paragraphs, immediate action will be 24 taken in the normal manner to carry of their discharge, as expeditiously as possible.

7. Cases of permanent low medical category personnel already decided under the existing provisions, will not be re-opened.

8. This supersedes all previous instructions on the subject.

A/32395/X/Org 2(MP)"