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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 1280 of 2019

Smt Sulekha Rani            Appellant(s)

                             VERSUS

Union of India and Ors Respondent(s)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

1 Admit.

2 This  appeal  arises  from a judgment  of  the Armed Forces  Tribunal1 at  its

Principal Bench, New Delhi.  While dismissing the Original Application filed by the

appellant,  the AFT has rejected her claim for grant of pension in respect of the

service rendered by her deceased spouse in the Indian Army.

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

1 AFT

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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.

4 The grievance of the appellant is that no Invalidation Medical Board was held

prior to the discharge of her spouse.  He was in SHAPE 1 medical category before

being posted for 7 months at the Siachen Glacier.  Relying on the decision of this

Court in Dharamvir Singh v UOI2, it has been submitted that a member of the force

is presumed to be in sound physical and mental condition upon entering service if

there is no contrary record at the time of entry.  The submission is based on the

following extract from the decision:

“24.2.  A disease which has led to an individual’s discharge or death will ordinarily be treated to have been arisen in service, if  no  note  of  it  was  made  at  the  time  of  the  individual’s acceptance for service in the Armed Forces.”

29.2.  A member is to be presumed in sound physical and mental condition upon entering service if there is no note or record  at  the  time  of  entrance.  In  the  event  of  his subsequently  being  discharged  from  service  on  medical grounds any deterioration in his health is to be presumed due to service [Rule 5 read with Rule 14(b)]

Reliance is also placed upon the decision of this Court in Union of India v Rajpal

Singh3 (“Rajpal Singh”). In that case, the  Respondent,  a Junior Commissioned

Officer (JCO), was placed in the permanent low medical category for a period of

2(2013) 7 SCC 316 3 (2009) 1 SCC 216

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two years before he was discharged. Before the expiry of this period, he was sent a

notice to show cause as to why he should not be discharged from service as no

sheltered appointment was available and his unit was deployed in a field area. A

two judge Bench of this Court held his discharge invalid on the ground that the

Respondent had not been subjected to an Invalidating Board under Rule 13(3)(I)(ii)

of the Army Act, 19504.

5 On the other hand, Mr Aman Lekhi, ASG submitted in the present case that a

notice to show cause was issued to the spouse of the appellant on 2 March 2001.

The show cause notice was in the following terms:

“1.  You have been placed in low medical category BEE (P) with  effect  from 30 Aug 2000.   You are willing to  serve in present  medical  category  but  no  sheltered  appointment  is available for you in the unit.  Therefore, it is proposed that you should be discharged from service having placed in medical category lower than AYE and not upto the required standard under the provisions of Army Order 46/80 Rule 13(3) III (v) of Army Rules 1954.”

In  response to  this  notice,  a  reply  was addressed  on 7  April  2001 stating that

though  he  wished  to  continue  in  the  service  of  the  Army,  since  he  was  being

discharged from service due to non-availability of a sheltered appointment in the

unit,  he may be discharged in  a manner that  would enable him to obtain other

service in the civilian section. On the basis of this response, it was urged that the

Jawan had in fact accepted his discharge and as a result, there was no necessity to

appoint  an  Invalidation  Board.   The  order  of  discharge  (it  was  urged)  was  not

appealed against in accordance with the provisions of law.  The learned ASG has

submitted that the decision in  Dharam Singh (supra) deals with the provisions of

4 “Army Act”

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Rule 14(b) and hence may not have application.  Moreover it was urged that the

spouse of the appellant had an Ectopic Kidney and his condition was not caused or

aggravated  by  military  service.   It  has  been  urged  that  the  affliction  was  of  a

constitutional nature and was not attributable to service in the Army.  

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).  

7 Rule 13 deals with Authorities empowered to authorize discharge. It provides

thus:  

“13. Authorities empowered to authorize discharge. (1) Each of  the authorities specified in column 3 of  the Table below shall  be the competent  authority  to  discharge from service person subject to the Act specified in column 1 thereof on the grounds specified in column 2.  (2) Any power conferred by this rule on any of the aforesaid authorities shall  also be exercisable by any other  authority superior to it.  [(2A) Where the Central Government or the Chief of the Army Staff decides that any persons subject to the Act should be discharged  from  service,  either  unconditionally  or  on  the fulfillment  of  certain  specified  conditions,  then, notwithstanding  anything  contained  in  this  rule,  the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision.]  (3)  In  this  table  “commanding  officer”  means  the  officer commanding the corps or department to which the person to be discharged belongings except  that  in the case of  junior commissioned  officer  and  warrant  officers  of  the  Special Medical Section of the Army Medical Corps, the “commanding officer” means the Director of the Medical Services, Army, and in the case of junior commissioned officer and warrant officers of  Remounts,  Veterinary  and  Farms,  Corps,  the “Commanding  officer”  means  the  Director  Remounts, Veterinary and Farms.”

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In  so far  as is  material  to  the discussion before us,  Rule  13(3)(III)  provides as

follows:

Category Grounds  of discharge

Competent  authority to  authorise discharge

Manner of discharge  

Persons enrolled  under the  Act  who have  been attested

(iii) Having been found medically  unfit  for further service.

Commanding Officer To be carried out only on the  recommendation  of an Invalidating Board.

(iii)  (a) Having  been found  to  be  in permanent low medical category  SHAPE  2/3 by  a  medical  board and when—

(i)  no  sheltered appointment  is available in the unit, or

(ii)  is  surplus  to  the organisation.

Commanding Officer The  individual  will  be discharged  from  service on the recommendations of  Release  Medical Board.

(v) All other classes of discharge.

Brigade/Sub-area Commander

The Brigade or Sub-area Commander  before ordering  the  discharge shall,  if  the circumstances  of  the case  permit  give  to  the person whose discharge is  contemplated  an opportunity  to  show cause  against  the contemplated discharge.

8 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

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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.   

9 In  Rajpal Singh (supra), while interpreting 13 (3)(I) of the Rules, the Court

noted that only cases which are not covered under a specific head can be covered

under a residual head:

“24.  … It  is plain that a discharge on the ground of having been found "medically unfit for further service" is specifically dealt with in Column (I) (ii) of the Table, which stipulates that discharge in  such a case is  to  be  carried out  only  on the recommendation of  the Invalidating Board.  It  is a  cardinal principle  of  interpretation  of  a  Statute  that  only  those cases  or  situations  can  be  covered  under  a  residual head, which are not covered under a specific head. It is, therefore, clear that only those cases of discharge would fall within the ambit of the residual head, viz. I (iii) which are not covered under the preceding specific heads.  In other words, if a JCO is to be discharged from the service on the ground of "medically unfit for further service", irrespective of the fact whether he is or was in a low medical category, his order of discharge can be made only on the recommendation of  an  Invalidating  Board.  The  said  rule  being  clear  and unambiguous  is  capable  of  only  this  interpretation  and  no other.               (emphasis supplied)

The Court further noted 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:  

“27. 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.

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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.”  

                         (emphasis supplied)

10 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.

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12 We  allow  the  appeal  in  the  above  terms  and  set  aside  the  impugned

judgment of the Armed Forces Tribunal dated 28 March 2011.  In the circumstances

of the case there shall be no order as to costs.

……………………….…...…....................J.                                                [Dr Dhananjaya Y Chandrachud]

….…………………….…...…....................J.                      [Indira Banerjee]

NEW DELHI; 16 July 2019.