Service Law:
Discharge from service - On medical grounds - Without subjecting the appellant/employee to the Invalidating Medical Board as per the procedure laid down under Army Rules - Propriety of - Held: Discharge of the appellant was only under sub-clause
(iii) r.13(3)(III) and not under sub-clause (v) of r.13(3)(III) of Army Rules - Therefore, he could not be invalidated out of service without the recommendation of the Invalidating Board and hence discharge is not sustainable - In terms of General Principles of Army Order
46 of 1980, he is entitled to be retained in service for 10 years Since the appellant had joined the service on 23.10.1987, he would be deemed to be discharged only on 22.10.1997 - Thus he is entitled to pension in addition to the disability pension - He is entitled to arrears of pension for a period of three years prior to filing of writ petition - Army Rules, 1954 - r.13(3)(III)(iii) - Army Order 46 of 1980.
Allowing the appeals, the Court
HELD: The order of discharge is on the ground that the appellant has been placed in Low Medical Category. The discharge of the appellant was only under category 13(3)(III)(iii) of Army Rules, 1954, 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) 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 subclause (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. such discharge is not legally sustainable. [Paras 8, 10 and 12] [1072-D-G-H; 1073-A-C-G]
2. 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. 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 which was transferred to the Tribunal. [Para 13, 14] [1073-H; 1074-AC] Union of India & Ors. v. Rajpal Singh (2009) 1 SCC
216 : [2008] 15 SCR 879 ; Smt. Sulekha Rani v. Union of India and Ors. Civil Appeal No. 1280 of 2019 decided on July 16, 2019 - relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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