Case Note & Summary
The appellant, Ex-Sepoy (Washerman) Ram Khilawan, was enrolled in the Indian Army on October 23, 1987. He was discharged from service on August 31, 1993 on medical grounds due to 'CNS (IN) Seizure' after being placed in permanent Low Medical Category BEE on August 27, 1992. Aggrieved by his discharge, he submitted a statutory complaint on August 11, 2007, contending that no show-cause notice was given and that the discharge was without convening an Invalidating Medical Board. The complaint was rejected on October 12, 2007, citing that no sheltered appointment was available commensurate with his trade. The appellant then filed a writ petition before the Allahabad High Court, which was transferred to the Armed Forces Tribunal, Regional Bench, Lucknow, upon the commencement of the Armed Forces Tribunal Act, 2007. The Tribunal dismissed his challenge on October 21, 2011, May 28, 2013, and June 30, 2014, holding that the discharge was valid under Rule 13(3) Item III(v) of the Army Rules, 1954 read with Army Order 46 of 1980. The appellant appealed to the Supreme Court. The Supreme Court examined the relevant provisions of Rule 13(3)(III) of the Army Rules, 1954, which lists grounds for discharge. Clause (iii) deals with discharge on medical unfitness and requires recommendation of an Invalidating Board, while clause (v) is a residual category for 'all other classes of discharge' and requires a show-cause notice. The court noted that the communication of discharge explicitly stated that the appellant was placed in Low Medical Category and discharged as per policy on discharge of permanent low medical category personnel under Army Order 46/80. The court held that the discharge was covered by clause (iii) and not clause (v), as the sole ground was medical unfitness. Relying on Union of India v. Rajpal Singh (2009) 1 SCC 216 and Smt. Sulekha Rani v. Union of India (Civil Appeal No. 1280 of 2019), the court held that discharge without an Invalidating Board is illegal. Consequently, the court set aside the discharge and deemed the appellant to have been retained until October 22, 1997, completing 10 years of service as per Army Order 46/80. The appellant was held entitled to pension from that date, but no arrears of salary were granted. Arrears of pension for three years prior to filing the writ petition were ordered to be paid within six months. The appeals were allowed.
Headnote
A) Army Law - Discharge on Medical Grounds - Invalidating Board Requirement - Rule 13(3)(III)(iii) Army Rules, 1954 - Discharge of an army personnel on ground of medical unfitness requires recommendation of an Invalidating Board; discharge without such board is illegal. The court held that the discharge of the appellant, who was placed in Low Medical Category BEE due to CNS seizure, was covered by clause (iii) and not the residual clause (v), and thus invalid without Invalidating Board (Paras 10-12). B) Army Law - Discharge - Classification under Rule 13(3)(III) - Rule 13(3)(III)(iii) and (v) Army Rules, 1954 - The court distinguished between clause (iii) (medical unfitness) and clause (v) (residual category). It held that the object and purport of discharge determine the applicable clause; since discharge was solely on medical grounds, clause (iii) applies, and clause (v) cannot be invoked (Paras 10-11). C) Army Law - Retention of Low Medical Category Personnel - Army Order 46/80 - Army Order 46/80 provides that permanent low medical category Other Ranks shall ordinarily be retained till completion of 10 years' service. The court held that the appellant, enrolled on October 23, 1987, was entitled to be retained until October 22, 1997, and thus deemed discharged on that date (Para 13). D) Army Law - Pension and Arrears - Entitlement - Army Order 46/80 - The appellant, having been deemed to have served until October 22, 1997, became entitled to pension in addition to disability pension already granted. However, no arrears of salary were granted on 'no work no pay' principle; arrears of pension for three years prior to filing of writ petition were directed to be paid within six months (Paras 13-14).
Issue of Consideration
Whether the discharge of the appellant from service on medical grounds without convening an Invalidating Medical Board is legally sustainable, and whether the discharge falls under clause (iii) or clause (v) of Rule 13(3)(III) of the Army Rules, 1954.
Final Decision
The Supreme Court allowed the appeals, set aside the orders of the Armed Forces Tribunal, and held that the discharge of the appellant was under clause (iii) of Rule 13(3)(III) of the Army Rules, 1954, and was illegal for want of recommendation of an Invalidating Medical Board. The appellant was deemed to have been retained until October 22, 1997, completing 10 years of service as per Army Order 46/80. He is entitled to pension from that date, but no arrears of salary. Arrears of pension for three years prior to filing of Writ Petition No. 61717 of 2007 to be paid within six months.
Law Points
- Discharge on medical unfitness requires Invalidating Board
- Residual clause not applicable when specific clause covers discharge
- Army Order 46/80 retention period for Other Ranks is 10 years
