Union of India &
Ors. Vs. Rajpal Singh  INSC 1913 (7 November 2008)
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)
[SLP (C) NOS. 14338-14339 OF 2008 AND SLP (C) NO.15430 OF 2008]
D.K. JAIN, J.:
granted in SLP (C) No. 6037 of 2007.
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?
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
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.
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
"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
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"
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
aggrieved, the respondent challenged his discharge by preferring a writ
petition under Article 226 of the Constitution in the High Court of Delhi at
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.
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.
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
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.
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
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  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.
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
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
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
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
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:
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.
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
(c) In any other case
the Chief of the Army Staff."
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
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."
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
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.
of the said order reads as follows:
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.
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.
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.
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
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.
(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.
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.
(C. K. THAKKER)