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Union of India & Ors. Vs. Rajpal Singh [2008] INSC 1913 (7 November 2008)

Judgment

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 WITH
[SLP (C) NOS. 14338-14339 OF 2008 AND SLP (C) NO.15430 OF 2008]

D.K. JAIN, J.:

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

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.

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"

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 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 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 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 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 8 Delhi Administration & Anr.2. Reference is also made 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 9 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 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 10 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.

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 11 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 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 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, 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.

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 Competent Manner of discharge authority to discharge authorise discharge 1 2 3 4 Junior I.(i)(a) On completion Commanding Commissioned of the period of Officer Officers 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.

(b) At his own Commanding request on transfer Officer to the pension establishment (ii) Having been Commanding To be carried out found medically Officer only on the unfit for further recommendation service. of an Invalidating Board.

(iii) All other classes (a) In the case If the discharge of discharge. of Junior is not at the Commissioned request of the Officers Junior granted direct Commissioned commissions Officer the during the first competent 12 months authority before service Area/ sanctioning the Divisional discharge shall if Commander the circumstances of the case permit give the Junior Commissioned Officer concerned an opportunity to show cause against the order of discharge.

(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 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.

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 where the learned Judge said:

7 359 U.S. 535 : Law Ed (Second series) 1012 "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 Sardar Singh Raghuvanshi & Anr.8 and then again in 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 Authority of India & Ors.10).

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

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 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.

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 fulfillment 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 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 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.

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.

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

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

NEW DELHI;

NOVEMBER 7, 2008.

 

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