REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6977-6978  OF 2019 (DIARY NO. 8013 OF 2015)

EX-SEPOY (WASHERMAN) RAM KHILAWAN .....APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1) Delay condoned. Appeals admitted.

2) The challenge in the present appeals is to orders passed by the

Armed Forces Tribunal1, Regional Bench, Lucknow on October 21,

2011, May 28, 2013 and June 30, 2014 whereby, challenge to the

discharge  of  the  appellant  from  service  on  August  31,  1993

remained unsuccessful.   

3) The  appellant  was  enrolled  in  the  Army  as  a  Washerman  on

October 23,  1987.   He was discharged from service on medical

grounds on August 31, 1993 due to “CNS (IN) Seizure” when he

1  Tribunal

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was  put  in  Low  Medical  Category  BEE  on  August  27,  1992.

Appellant,  aggrieved  against  the  discharge,  submitted  statutory

complaint on August 11, 2007 wherein, the stand of the appellant

was  that  no  show-cause  notice  was  given  to  him  by  the

Commanding Officer who sanctioned discharge under Rule 13(3)

Item III (v) of the Army Rules, 19542.  Such statutory complaint was

declined on October 12, 2007, inter alia, on the ground that though

the  appellant  has  given  his  option  to  serve  in  the  sheltered

appointment  but  no  sheltered  appointment  was  available

commensurate  with  the  trade  to  suitably  employ  in  the  public

interest.   Therefore,  he  was  discharged  under  the  provisions  of

Army Order 46 of 1980 read with Rule 13(3) Item III(v) of the Rules.

4) The appellant filed writ petition before the High Court of Judicature

at Allahabad but subsequently on commencement of Armed Forces

Tribunal Act, 2007, the writ petition was transferred to the Tribunal,

Regional  Bench,  Lucknow.   The  learned  Tribunal  found  that  the

appellant was placed in permanent Low Medical Category BEE and

was  discharged  from service  on  August  31,  1993  with  only  05

years 11 months and 08 days of service.  The Classified Specialist

has put the following restrictions on the appellant:  

“not  be  allowed  to  swim  or  work  near  fire  or moving machinery and also to handle firearms to ensure seizure precautions.”

Therefore,  he  could  not  be  employed  in  other  sheltered

appointment  in  public  interest.   The  Tribunal  found  that  the

2  Rules

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appellant has been given disability pension @20% for five years.   

5) Some of  the  relevant  provisions  of  the  Rules  need  to  be

reproduced:

“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 service person subject to the Act specified in column 1 thereof on the grounds specified in column 2.

xx xx xx

TABLE

Category Grounds of discharge Competent authority  to authorise discharge

Manner  of discharge

1 2 3 4 Junior  Commissioner Officers

xx xx xx

Warrant  Officer

xx xx xx

Persons  enrolled  under the act  who have  been attested

(III) (i) xx xx

(ii)  xx xx xx

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

Commanding Officer

To  be  carried  out only  on  the recommendation of an  invaliding 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 organization.

Commanding Officer

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

(iv) At  his own request before  fulfilling  the conditions  of  his

Commanding Officer

The  Commanding Officer will exercise the  power  only

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enrolment. when he is satisfied as  to  the desirability  of sanctioning  the application and the strength of the unit will  not thereby be unduly reduced.

(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.

6) Another  relevant provision is Army Order No. 46 of  1980, which

reads as under:

“AO 46/80 Disposal of Permanent Low Medical Category Personnel Other Than Officers

Aim

1.  The  aim  of  this  Army  Order  is  to  lay  down implementation  instructions  for  the  disposal  of permanent low medical  category JCOs/OR in terms of Ministry of Defence Letter No. A/32395/VIII/Org 2 (MP) (c)/713-S/A/D (AG)  dated 10-5-1977 as amended vide Corrigendum  No.  A/32395/X/Org  2  (MP)  (c)/7167/A/D (AG)  dated  26-11-1979,  reproduced  as  Appendices  A and B respectively to this Order.

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

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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 Singh3 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 Table.”

3  (2009) 1 SCC 216

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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’ and 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)

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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.4

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 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

4  Civil Appeal No. 1280 of 2019 decided on July 16, 2019

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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.   

14) As  a  consequence  thereof,  the  appellant  became  entitled  to

pension in addition to disability pension which was granted to him

for  a  period  of  five  years.   However,  the  appellant  will  not  be

entitled  to  arrears  of  salary  for  the  period  up  to  the  date  of

discharge inter alia on the ground of no work no pay but he shall be

entitled to arrears of pension for a period of three years prior to

filing of Writ Petition No. 61717 of 2007 which was transferred to

the Tribunal.  The arrears of pension be paid to the appellant within

a period of six months from the date of receipt of copy of this order.

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15) In view of the above, the appeals are allowed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; SEPTEMBER 2, 2019.

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