REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    6587        OF 2008 (Arising out of S.L.P. (C) No. 6037 of 2007)

UNION OF INDIA & ORS. — APPELLANT (S)

VERSUS

RAJPAL SINGH — RESPONDENT (S)

WITH  [SLP (C) NOS. 14338-14339 OF 2008 AND  

SLP (C) NO.15430 OF 2008]

J U D G M E N T

D.K. JAIN, J.:

Leave granted in SLP (C) No. 6037 of 2007.

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2. This appeal raises a short question whether the holding of

an  “Invalidating  Board”  is  a  condition  precedent  for

discharge  of  a  Junior  Commissioned  Officer  (JCO)  on

account of low medical category?

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:

The  respondent,  a  Junior  Commissioned  Officer  (JCO)

was enrolled in the Army on 9th March, 1980.  While serving

20 JAT Regiment, on 31st July, 2000, he fell ill; was admitted

to the military hospital and was discharged after treatment on

7th November, 2000, but was placed in low medical category

S1H1A1P2E1  with  effect  from  6th November,  2000  for  six

months.   On account  of  disability,  namely,  Ischaemic heart

disease, again in May, 2001, he was continued in low medical

category for another six months.  Later, he was brought for

review  and  was  then  placed  in  low  medical  category

(permanent) for a period of two years from October, 2001.

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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:

“20 JAT C/O 99 APO

2062/A/ February, 2002

JC 48893 IX Mb Sub Rajpal Singh 20 JAT C/o 99 APO

SHOW CAUSE NOTICE

1. During re-categorization board held at 178 Army Hospital on 24.10.2001,  as per  AF MSF-15A you have  been  declared  in permanent low medical category.

2. Because the unit is deployed in field area, there is no sheltered appointment.  As a result of the above, show cause as to why you  should  not  be  discharged  from  service  because  your retention in service is not in public interest.

3. Please send reply of the show cause notice by 10.3.2002.

Sd/- xxxx

(Rajesh Ahuja) Colonel Commanding Officer”

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5. In his reply to the said notice, the respondent pleaded that

on  doctor’s  advice  he  could  perform  light  duties  and

expressed his willingness to continue in service.  A ‘Release

Medical  Board’  was  constituted,  which  recommended  his

discharge.  Accordingly, by an order passed by the Officer

In-charge  (OIC)  of  20 JAT Regiment,  the respondent  was

discharged from service with effect from 31st August, 2002.   

6. Being  aggrieved,  the  respondent  challenged  his discharge

by  preferring  a  writ  petition  under  Article  226  of  the

Constitution  in  the  High  Court  of  Delhi  at  New  Delhi.

Before the High Court the plea of the respondent was that:-

(i) as a JCO he could be discharged for low medical category

under Army Rule 13 (3) (I) (ii) by the Commanding Officer

after obtaining the opinion of an “Invalidating Board” and

not  under  Rule  13  (3)  (I)  (iii)  (c)  read  with  Rule  13  (2A)

which had been applied in his case and since the opinion of

the Invalidating Board had not been obtained, his discharge

was contrary to the rules;  (ii)  as  per  the  mandate  of  the

afore-noted  Army  Rule,  the  recommendation  of  the

Invalidating Board is to precede the decision for discharge

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and  a  “Release  Medical  Board”  cannot  replace  the

requirement of “Invalidating Board”;  (iii)  as per the policy

directive issued by the Government on 15th March, 2000,

Army Rule 13 (3) (I) (iii) (c), he could be discharged only  by

the Chief of Army Staff and not by OIC, 20 JAT Regiment

even  though  under  Rule  13  (2A),  such  power  could  be

delegated to the commanding officer but in the present case

no such decision had been taken; (iv) there was no adverse

report against him either from his CO or any of the superior

officers’  regarding  performance  of  his  duties  and  general

behaviour and, therefore, his continuation in service could

not  be  said  to  be  against  public  interest;  (v)  the  OIC

(Records)  order  of  his  discharge  without  providing  an

opportunity  of  hearing  is  violative  of  the  principles  of

natural justice and (vi) a number of similarly situated JCOs

had been retained in service and, therefore,  he had been

discriminated against.  

7. The stand of  the Government  before  the High Court  was

that retention of low medical category personnel is always

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subject to the availability of suitable sheltered appointment,

commensurate  with  their  medical  category  and  since  no

suitable sheltered appointment was available with the unit

due to deployment in field area, the respondent had to be

discharged from service.  It was also urged that since the

respondent’s  disability  had already  been assessed  by the

Release Medical Board, he was discharged under Army Rule

13 (3)  (I)  (iii)  (c)  read with Rule  13 (2A)  and Army Order

46/80 in public interest.

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

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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.

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.

10. It  was  strenuously  urged  by  Mr.  Vikas  Singh,  learned

Additional Solicitor General, that since the respondent was

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in  low  medical  category,  he  was  discharged  under  Army

Order 46 of 1980 read with Rule 13 (3) (I) (ii) (c) of the Army

Rules, 1954 (for short ‘the Rules’) whereunder there is no

requirement  for convening an Invalidating Board.   It  was

submitted  that  the  source  of  power  of  discharge  of  the

respondent was Sub-rule (2A) of Rule 13, which creates a

special provision for discharge, notwithstanding anything to

the contrary contained in Rule 13.  It was contended that

the meaning of the expression ‘unfit for further service’ as

used  in  clause  (ii)  of  Rule  13  (3)  (I)  is  very  clear  and

unambiguous  and,  therefore,  “Invalidating  Board”  as

contemplated under the said Rule is meant only for those

army personnel who are found medically ‘unfit for further

service’ by the Review Medical Board not for those who are

placed in ‘low medical category (permanent)’, as is the case

here.  In support of the proposition that when the words of

the  statute  are  clear,  plain  and  unambiguous  then  the

courts are bound to give effect to that meaning, irrespective

of the consequences, reliance is placed on the decisions of

this Court in  Gurudevdatta Vksss Maryadit & Ors.  Vs.

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State of Maharashtra & Ors.1 and  Jitender Tyagi  Vs.

Delhi Administration & Anr.2.  Reference is also made to

Shailendra  Dania  &  Ors.  Vs.  S.P.  Dubey  &  Ors.3 to

contend  that  a  long  past  practice  followed  by  the

department  is  also  a  valid  factor  in  seeking  a  particular

interpretation.

11. Per contra,  Mr.P.P. Rao, learned senior  counsel  appearing

for the respondent, vehemently contended that in terms of

Sub-rule  (3)  of  Rule  13  which  specifies  the  category  of

officers, competent to discharge; the grounds of discharge,

and the manner of discharge, a JCO like the respondent,

who had been placed in low medical category (permanent)

for a period of two years, could be discharged from service

only  if  he  had  been  found  “medically  unfit  for  further

service” on the recommendation of the Invalidating Board.

According to the learned counsel,  though in the order  of

discharge  the  respondent  has  been  found  to  be  in  “low

medical category (permanent)” but in effect, for the purpose

1 (2001) 4 SCC 534 2 (1989) 4 SCC 653 3 (2007) 5 SCC 535

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of discharge, he has been found medically “unfit for further

service”,  and, therefore,  his case would clearly fall  within

the ambit of clause (ii) of Rule 13 (3) (I).   In support of the

proposition that where power is given to do a certain thing

in a certain way, the thing must be done in that way or not

at  all  and  that  other  methods  of  performance  are

necessarily forbidden, reliance was placed on the decision

in  Nazir  Ahmad  Vs.  The  King  Emperor4, followed  in

State  of  Uttar  Pradesh Vs.  Singhara  Singh  & Ors.5.

Learned  counsel  argued  that  the  requirement  of

recommendation  of  Invalidating  Board  is  a  safeguard

against arbitrary curtailment of statutory tenure and being

a benevolent provision, requires to be liberally construed.

The stand of the respondent is that the Rules relating to

discharge  do  not  make  any  differentiation  between

categorisation of the personnel on the basis of their health

status and as long as a person is discharged on medical

grounds as being unfit for further service, provision of Rule

13 (3) (I) (ii) would apply, irrespective of categorisation.  In

4 L.R. 63 I.A. 372 5 [1964] 4 SCR 485

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so far as Army Order 46 of 1980 is concerned, the learned

counsel  submitted  that  it  cannot  override  the  statutory

rule.  Placing reliance on the decision of this Court in Capt.

Virendra  Kumar  Vs.  Union  of  India6,  learned  counsel

urged  that  the  appellants  having  failed  to  follow  the

prescribed statutory procedure, the termination of service of

the respondent was illegal and, therefore,  the High Court

was fully justified in setting aside the same.

12.Having  examined  the  issue  in  the  light  of  the  statutory

provisions,  we  are  of  the  opinion  that  answer  to  the

question posed has to be in the affirmative.

13.It  needs  little  emphasis  that  fitness  of  the  personnel  of

Armed Forces  at  all  levels  is  of  paramount  consideration

and there cannot be any compromise on that score.  It is

with this  object  in  view,  the  Legislature  has  enacted  the

Army Act,  1950;  the Armed  Forces  Medical  Services  Act,

1983 and framed the Rules.  Army Orders are also issued

from time to time in order to give effect to these statutory

provisions  in  letter  and  spirit.   As  per  the  procedure 6 (1981) 1 SCC 485

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detailed in the written submissions, filed on behalf of the

appellants, annual or periodic medical examination of the

army  personnel  is  done  on  certain  specific  norms.   The

medical status of an army personnel is fixed on the basis of

these norms, containing five components viz. (a) psychology

(b) hearing (c) appendarist (d) physical and (e) eye — which

is collectively known as SHAPE.  The medical status SHAPE

is again characterised in five components known as:—    

SHAPE I—physically fit for all purposes.   

SHAPE  II  &  SHAPE  III—not  fit  for  certain duties  and  are  required  not  to  undertake strain.   

SHAPE  IV—those  who  are  in  hospital  for certain ailments and  

SHAPE  V—unfit  for  further  service  of  the Army.   

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

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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

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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.

15.Having noticed the basic parameters which are applied for

categorisation of the physical status of the army personnel,

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it  will  be  useful  to  briefly  refer  to  relevant  statutory

provisions.

16.Chapter IV of the Army Act, 1950 (for short ‘the Act’) deals

with  the  conditions  of  service  of  the  army  personnel.

Section 18 of the Act provides that every person subject to

the  Act  shall  hold  office  during  the  pleasure  of  the

President.  Section 19 clothes the Central Government with

the power of dismissal or removal from service any person

covered under the Act subject to the provisions of the Act

and the Rules and Regulations made thereunder.  Section

20 provides for dismissal, removal or reduction by the Chief

of the Army Staff and by other officers.  Section 22 of the

Act provides for retirement, release or discharge from the

service by such authority and in such manner as may be

prescribed.  Sub-Section (xix) of Section 3 of the Act states

that ‘prescribed’ means prescribed by rules made under the

Act.   Section  191  empowers  the  Central  Government  to

make  rules  as  regards  removal,  retirement,  release  or

discharge from the service  of  persons subject  to the Act.

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Pursuant to and in furtherance of the power conferred on

the Central Government under Section 191 of the Act, the

Central Government framed the Rules.   

17.Rule 13 which is the pivotal provision reads thus:

“13. Authorities empowered to authorise 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 person or class or 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 belongs except that in the case of junior commissioned officers 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.

TABLE

Category Grounds of discharge

Competent authority to

authorise discharge

Manner of discharge

1 2 3 4

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Junior Commissioned Officers

I.(i)(a) On completion of  the  period  of service  or  tenure specified  in  the Regulations  for  his rank  or appointment, are on reaching  the  age limit  whichever  is earlier,  unless trainee on the active list  for  further specified period with the  sanction  of  the Chief  of  the  Army Staff or on becoming eligible  for  release under  the Regulations.

Commanding Officer

(b)  At  his  own request  on  transfer to  the  pension establishment

Commanding Officer

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

Commanding Officer

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

(iii) All other classes of discharge.

(a) In the case of  Junior Commissioned Officers granted  direct commissions during the first 12  months service  Area/ Divisional Commander

If  the  discharge is  not  at  the request  of  the Junior Commissioned Officer  the competent authority  before sanctioning  the discharge shall if the circumstances of the  case  permit give  the  Junior Commissioned Officer concerned  an opportunity  to show  cause against the order of discharge.

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(b) In the case of  JCOs,  not covered by (a), serving  in  any Army  or Command  the General Officer Commanding- in-Chief of that Army  or command  if not  below  the rank  of Lieutenant General.

(c)  In  any other  case  the Chief  of  the Army Staff.”

18.The  afore-extracted  Rule  13  (1)  clearly  enumerates  the

authorities  competent  to  discharge  from  service,  the

specified person; the grounds of discharge and the manner

of discharge.  It is manifest that when in terms of this Rule

an army personnel is discharged on completion of service or

tenure  or  at  the  request  of  the  person  concerned,  no

specific manner of discharge is prescribed.  Naturally, the

Regulations or Army Orders will take care of the field not

covered  by  the  Rules.   However,  for  discharge  on  other

grounds, specified in Column (2) of the Table, appended to

the Rule, the manner of discharge is clearly laid out.  It is

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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.

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19. Having  reached  the  said  conclusion,  we  feel  that  the

appellants were bound to follow Rule 13 (3) (I) (ii), more so

having  placed  the  respondent  in  low  medical  category

(permanent) for a period of two years from October, 2001 he

was discharged from service on 31st August, 2002, relying

on the recommendation of the Re-categorisation Board held

on 24th October, 2001.  As noted in the show cause notice,

extracted above, the said Board had placed the respondent

in “permanent low medical category”.  Be that as it may, the

main  ground  of  discharge  being  medical  unfitness  for

further  service,  the  appellants  were  bound  to  follow  the

prescribed rule.

20. It is well settled rule of administrative law that an executive

authority  must  be  rigorously  held  to  the  standards  by

which  it  professes  its  actions  to  be  judged  and  it  must

scrupulously  observe  those  standards  on  pain  of

invalidation of an act in violation of them.  This rule was

enunciated by Justice Frankfurter in Viteralli Vs. Saton7,

where the learned Judge said:

7 359 U.S. 535 : Law Ed (Second series) 1012

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“An executive agency must be rigorously held to the standards  by  which  it  professes  its  action  to  be judged… Accordingly, if dismissal from employment is  based  on  a  defined  procedure,  even  though generous beyond the requirements that bind such agency,  that  procedure  must  be  scrupulously observed…This  judicially  evolved  rule  of administrative law is now firmly established and, if I may add, rightly so.  He that takes the procedural sword shall perish with that sword.”

21. The  afore-extracted  observations  were  approved  and

followed  in  Sukhdev  Singh  &  Ors.  Vs.  Bhagatram

Sardar Singh Raghuvanshi & Anr.8 and then again in

Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab &

Ors.9  wherein,  speaking  for  a  three-Judge  Bench,  P.N.

Bhagwati, J. had observed that though the above view  was

not  based  on  the  equality  clause  of  the  United  States

Constitution and it was evolved as a rule of administrative

law  but  the  principle  remains  the  same,  namely,  that

arbitrariness should be eliminated in a State action.  (Also

see: Ramana Dayaram Shetty Vs. International Airport

Authority of India & Ors.10).  

8 (1975) 1 SCC 421 9 (1975) 3 SCC 503 10 (1979) 3 SCC 489

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22.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.   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.   

23.In  the present  case,  it  is  evident  from Column 9 of  the

order of discharge that respondent has been discharged on

account of his having been placed in a low medical category

(permanent)  by  the  Re-categorisation  Board.   As  noted

above,  he  was  not  discharged  immediately  and  was

apparently  detailed  for  sheltered  appointment.   However,

suddenly within a few months of his evaluation by the “Re-

categorisation  Board”,  he  was  served  with  a  show cause

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notice,  seeking  to  discharge  him  on  the  aforementioned

grounds.  We are convinced that although the discharge is

purportedly shown to be also on account of non-availability

of a sheltered appointment, the main ground for discharge

was  undoubtedly  on  account  of  permanent  low  medical

category i.e. medical  unfitness.  In that view of the matter,

the  order  of  discharge  of  the  respondent  would  not  fall

under the residual ground, namely, I (iii) in Column 2 of the

Table.

24. That takes us to the next question whether the case of the

respondent for discharge could be dealt with in accordance

with Army Order 46 of 1980, de hors Rule 13, as contended

by the appellants.   

25.Relevant portion of the said order reads as follows:

“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 Min of Def Letter No. A/32395/VIII/Org 2 (MP)  (c)/713-S/A/D  (AG)  dated  10  May,  77  as  amended  vide Corrigendum  No.  A/32395/X/Org  2  (MP)  (c)/7167/A/D  (AG) dated 26 Nov 79, reproduced as Appendice ‘A’ and ‘B’ respectively to this order.

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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.

(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.

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:-

(a) NCOs  will  be  discharged  on  completion  of  the retiring service  limits appropriate  to ranks as opposed to the extended limits laid down in AO 13/77.  However, their retention beyond the contractual period of engagement will be regulated under the provisions of Paras 144 to 147 of Regulations for the Army 1962.

(b) JCOs will be discharged on completion of the normal retiring service limits as opposed to the extended limits laid down in AO 13/77.

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

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taken  in  the  normal  manner  to  carry  of  their  discharge,  as expeditiously as possible.

6. This order only lays down the general policy and procedure with regard to  the  disposal  of  permanent  low medical  category personnel.  The actual discharge will, however, be carried out in accordance  with  the  provisions  of  Min  of  Def  letter  No. A/32395/VIII/Org 2 (MP) (c)/713-S/a/D (AG) dated 10 May 77, as  amended  vide  Corrigendum  No.  A/32395/X/Org  (MP)  (c)/ 7167/A/D (AG)  dated 26 Nov 79 (reproduced as Appendices  ‘A’ and  ‘B’  respectively)  and  this  HQ letter  No.  8861/AG/PS  2  (c) dated 18 Aug 64, read with letter No 8861/AG/PS 2(c) dated 26 Mar/1 Apr 70.

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)”

26. It is manifest that the said Army Order has been issued for

disposal of permanent low medical category personnel and

merely contemplates that the employment of permanent low

medical  category personnel  at  all  times,  is subject  to the

availability  of  suitable  alternative  appointments

commensurate  with  their  medical  categories  and  also

subject to the conditions that such a sheltered appointment

can be justified in the public interest.  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

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period.  If a person is to be retained in service despite his

low medical category for a particular period as stipulated in

the Army Order 46 of 1980, the question of subjecting him

to 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.   Similarly,  Sub-rule  (2A)  of  Rule  13,  heavily

relied upon by the appellants does not carry the case of the

appellants any further.  It is only an enabling provision to

authorise the commanding officer to discharge from service

a person or a class of persons in respect whereof a decision

has been taken by the Central Government or the Chief of

Army  Staff  to  discharge  him  from  service  either

unconditionally  or  on  the  fulfilment  of  certain  specified

conditions.  The said provision is not in any way in conflict

with the scope of the remaining part of Rule 13, so as to

give it an overriding effect, being a non obstante provision.

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27. For  the  foregoing  reasons,  we  wholly  agree  with  the

reasoning and the conclusion of  the High Court  that the

discharge of the respondent was not in accordance with the

prescribed procedure and was, therefore, illegal.  We do not

find  any  illegality  or  infirmity  in  the  impugned

judgment/order, warranting our interference.  The appeal,

being  devoid  of  any  merit,  is  dismissed  accordingly  with

costs.

SLP (C) NOS. 14338-14339 OF 2008 & SLP (C) NO.15430 OF 2008

28.These  tagged special  leave  petitions  have been preferred

against the orders passed by the High Court, declining to

grant interim relief to the writ petitioners.  Since the main

issue now stands decided, there is no point in entertaining

these petitions.  All the petitions are dismissed accordingly

without observing anything on merits.  It will be open to the

High  Court  to  now  take  up  the  main  writ  petitions  for

disposal in accordance with law.

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…………………………………………J.        (C. K. THAKKER)  

                              ..….…………………………………….J.        (D.K. JAIN)

NEW DELHI; NOVEMBER 7, 2008.

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