Case Note & Summary
The appellant, Ex-Sepoy (Washerman) Ram Khilawan, was enrolled in the Indian Army on October 23, 1987. He was placed in permanent Low Medical Category BEE on August 27, 1992 due to CNS (IN) Seizure, with restrictions including not being allowed to work near fire or moving machinery. He was discharged from service on August 31, 1993 after 5 years 11 months and 8 days of service. The appellant submitted a statutory complaint on August 11, 2007, contending that no show-cause notice was given and that he was not subjected to an Invalidating Medical Board. The complaint was rejected on October 12, 2007, on the ground that no sheltered appointment was available. The appellant then filed a writ petition before the Allahabad High Court, which was transferred to the Armed Forces Tribunal, Regional Bench, Lucknow, under the Armed Forces Tribunal Act, 2007. The Tribunal dismissed the challenge on October 21, 2011, May 28, 2013, and June 30, 2014. The appellant appealed to the Supreme Court. The legal issues were whether the discharge was under Rule 13(3)(III)(iii) or (v) of the Army Rules, 1954, and whether it was valid without an Invalidating Board. The appellant argued that discharge on medical grounds requires an Invalidating Board as per Rule 13(3)(III)(iii), relying on Union of India v. Rajpal Singh. The respondents contended that the discharge was under the residual clause (v), which does not require such a board. The Supreme Court analyzed the discharge order and found that it was based on the appellant being placed in Low Medical Category, thus falling under clause (iii) of Rule 13(3)(III). The court held that the discharge without the recommendation of an Invalidating Board was illegal and unsustainable. The court further held that under Army Order 46/80, the appellant, being an Other Rank, was entitled to be retained for 10 years, i.e., until October 22, 1997. Consequently, the court allowed the appeals, set aside the Tribunal's orders, and directed that the appellant is entitled to pension from the deemed date of discharge, but not arrears of salary on the principle of no work no pay. The appellant is entitled to arrears of pension for three years prior to filing the writ petition, to be paid within six months.
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 recommendation is illegal and unsustainable. The court held that the discharge of the appellant, who was placed in Low Medical Category BEE due to CNS seizure, was covered under clause (iii) and not the residual clause (v), and thus invalid (Paras 10-12). B) Army Law - Retention of Low Medical Category Personnel - Army Order 46/80 - Under Army Order 46/80, permanent low medical category personnel of Other Ranks are ordinarily to be retained till completion of 10 years' service. The court held that the appellant, having joined on October 23, 1987, was entitled to be retained until October 22, 1997, and his discharge on August 31, 1993 was premature (Para 13). C) Army Law - Arrears of Pension - Limitation - No work no pay - The court directed that the appellant is not entitled to arrears of salary for the period up to discharge on the principle of no work no pay, but is entitled to arrears of pension for three years prior to filing of the writ petition, to be paid within six months (Para 14).
Issue of Consideration
Whether the discharge of the appellant from service on medical grounds without subjecting him to an Invalidating Medical Board is legally sustainable, and whether the discharge falls under Rule 13(3)(III)(iii) or (v) of the Army Rules, 1954.
Final Decision
Appeals allowed. Orders of Armed Forces Tribunal set aside. Discharge of appellant held illegal. Appellant deemed to be discharged on October 22, 1997. Appellant entitled to pension from that date, but not arrears of salary. Arrears of pension for three years prior to filing of writ petition to be paid within six months.
Law Points
- Discharge on medical unfitness requires Invalidating Board recommendation
- Residual clause (v) not applicable when medical unfitness is ground
- Army Order 46/80 retention period for Other Ranks is 10 years
- No work no pay principle applies
- Arrears of pension limited to three years prior to filing of writ petition
