11.02.2016 This is an OA, under Section 14 of the Armed Forces Tribunal Act 2007, challenging, in substance, legality and validity of the order dated 08.02.2013 discharging the petitioner from service w.e.f. 31.07.2013 under Rule 13(3)I(ii)(a) of Army Rules,1954 (for short 'AR') read with Army Order 46/1980 as well as that of Government of India, Ministry of Defence Gazette Notification dated 13 May 2010 and Army HQ Letter dated 30 Sep 2010 on the ground that the same run contrary to A R 13 read with Para 421 and 424 (c) of Medical Regulations and the Judgments in the cases of Rajpal Singh (2009)
1 SCC 216 and Puttan Lal and Ors [WP(C) No5946/2007 decided by the Delhi High Court].
2. Vide order dated 23.07.2013, the petitioners prayer for grant of an interim relief was accepted. Accordingly, the respondents were directed to maintain status quo till further orders.
3. The constitutional validity of AR 13(3) I(ii)(a) read with AR 13 (2A), the Gazette Notification and legality of the Policy Letter, whereunder the impugned order of discharge was issued, have Sub Davinder Singh Petitioner Versus UOI & Ors Respondents OA 169/2013 already been upheld by a Full Bench of this Tribunal, to which one of us (Lt Gen SK Singh) was a party, by way of a common order dated 24.09.2014 passed in this and other connected matters. The operative para of the order reads:-
(i) Honble Supreme Court in Rajpal Singh case and Honble Delhi High Court in Puttan Lal case held that army personnel medically unfit for further service can be released on recommendation of an Invaliding Medical Board. Said position has not been altered by the newly inserted clause (ii)(a) at various places in the table appended to Rule 13.
(ii) Clause (ii)(a) is applicable to army personnel for whom no sheltered appointment is available in the unit or is surplus to the organization and who is also in medical category SHAPE 2/3. Placing the army personnel in medical category SHAPE 2/3, the procedure has not been changed by newly inserted clause (ii)(a). The personnel in medical category SHAPE 2/3 is not required to be examined by the Invaliding Medical Board.
(iii) Predominant reason for discharge under Clause
(ii)(a) is not the medical ground as was in the cases of Rajpal Singh and Sub Puttan Lal. The Clause (ii)(a) is a new provision inserted by the impugned amendment with an object to maintain the strength in service within the sanctioned strength as well as to accommodate SHAPE 2/3 army personnel in sheltered appointment to the required strength and to discharge the army personnel who cannot be accommodated in the sheltered appointment and who is surplus to the organization. OA 169/2013
(iv) Insertion of above Clause (ii)(a) by impugned amendment cannot be held to be malafide nor it has created two classes or gives discriminatory treatment to similarly situated persons and is not in violation to Article
14 of the Constitution of India.
(v) The clause (ii)(a) has been added in the rule within legislative competence is admitted legal position as has been admitted by the learned counsel for the parties and we found that so has been done as per the legal position.
(vi) Consequently, the validity of the Gazette Notification dated 13.05.2010 is upheld and therefore, the communication dated 30.09.2010 suffers from no illegality.
4. Coming to the facts of the instant case it may be observed that the petitioner was enrolled in the Army on 28.04.1996, After being diagnosed as a case of Primary Hypertension, he was ultimately placed in Permanent Low Medical Category S1H1A1P2(T-24) w.e.f. 01.01.2008.
5. According to the respondents, even though, suitable sheltered appointment was provided to him but the Commanding Officer did not recommend the petitioner's retention in service w.e.f. 15.01.2013 considering the altitude and weather conditions of the area where the regiment was to be stationed, a person in Permanent Low Medical Category like him could not be deployed there. Accordingly, on 23.02.2013, a notice was served upon the petitioner to show cause as to why he should not be discharged from service under the provisions of AR 13 (3) item 1(ii)(a)(i) on the ground that no sheltered appointment commensurate with his medical category was available in the Unit. In his reply dated 07.03.2013, the petitioner expressing OA 169/2013 willingness to continue in the service requested to consider his case sympathetically.
6. In the counter affidavit as well as in the additional counter affidavit filed in the lead case (OA 228/2012 Sub Laxmi Kant Mishra vs. Union of India and Others), the respondents have highlighted the background and aims and objectives of the Policy Letter No.B/10201/Vol/MP-3(PBOR) dated 30.09.2010. Making reference to Para 7 & 10 thereof and AR 13(3) item 1(ii)(a)(i), they have further averred that the Commanding Officer, being the best judge to decide the issue after taking in to consideration the relevant factors including the interests of the individual, maintenance of the desired operational efficiency of the unit, public interest as well as security of the nation. According to them, by virtue of clause 10 of the letter, although the Commanding Officer is the final authority to sanction discharge of a JCO/OR, who is in shape 2/3 if no sheltered appointment is available in the unit or the individual is surplus to the Organization yet approval of the Authority mentioned in clause 7 has to be obtained prior to sanction of the actual discharge. Attention has also been invited to the safeguards to prevent any arbitrariness or subjectivity in exercise of the discretion by the Commanding Officer in the matter of discharge of a Low Medical Category personnel.
7. Still, learned counsel for the petitioner while making reference to the decision of the Punjab & Haryana High Court in Sub Manjit Singh Vs UOI & Ors [CWP 988/2012 decided on 19.05.2014] has strenuously contended that the Show Cause Notice as well as order of discharge is not sustainable in law because as per the mandate of A R13, petitioner could be discharged only after being examined and recommended for such an action by a Release Medical Board. In reply, it has been submitted that as per the stipulated procedure in terms of Army Order 3/1989, Release Medical Board has to be carried out only after issuance of order for discharge from service. As OA 169/2013 further pointed out by learned counsel for the respondents, the petitioner shall be subjected to examination by a Release Medical Board so as to ascertain the nature and extent of the disability before his actual discharge from service. This aspect of the matter has already been discussed at length in Sub (RT) Tribhuwan Upadhyay Vs UOI & Ors (OA 220/2012, decided on 11.09.2015) in the light of the position of law as it obtains today. Accordingly, the contention is not worthy of acceptance.
8. We are also not inclined to reconsider the aforesaid aspect or any other aspect of the matter already dealt with by the Full Bench.
9. To sum up, the respondents have been able to show by furnishing rank and date wise disabilities of LMC personnel of the Unit and Arty. Records letter dated 04.02.2015 as to why the sheltered appointment could not be provided to the petitioner. Moreover, the petitioner has completed more than 19 years of service which is much more than the minimum pensionable service. As such, there is no legal hurdle in the way of the respondents to release the petitioner.
10. In the light of the facts and circumstances highlighted above, the impugned order of discharge under A R 13 (3) I (ii)(a)(i) was in consonance with the guidelines laid down in Army Order 46/80 and the Policy dated 30.09.2010. The order, therefore, does not call for any interference.
11. The OA, accordingly, stands dismissed with no order as to costs. As an obvious consequence, the interim stay order dated 23.07.2013 stands vacated. The respondents shall be at liberty to discharge the petitioner from service under the aforesaid Army Rule read with the Army Order 46/80 by issuing a fresh order for the purpose. OA 169/2013
12. Needless to say that service rendered by the petitioner during the period from 01.08.2013 till the date of actual discharge shall be treated as service for all purposes. (R.C. MISHRA) MEMBER (J) (S.K. SINGH) MEMBER (A) 11.02.2016/Chanana