D.K. Seth, J. - (1.) The petitioner was discharged from service with effect from 23-1-1985 after he was asked to show cause by letter dated 23-11-1984 (Annexure-2 to the petition) as to why he should not be discharged from service on account of his placement in the Medical category lower than AYE or he should be retained in service in low Medical category. It is alleged that despite the petitioner's option to be retained' in service, the petitioner was discharged from service on 23-1-1985 without any separate discharge order. He has also made out a case that he was denied promotion to the post of Subedar despite his eligibility, arbitrarily and illegally. On account thereof the petitioner had developed certain medical disabilities, due to which he was placed in Low Medical category. It is further alleged by the petitioner that he has not been paid disability pension despite his discharge on account of his placement in Low medical category. It is further alleged that leave encashment payment has also not been made to him. It is further alleged that though the petitioner was discharged from service but no steps were taken for rehabilitating him.
(2.) Sri Sudhansu Srivastava, holding brief of Sri V.K. Chaudhary, learned Counsel for the petitioner vehemently argued that despite his eligibility for promotion to the post of Subedar his claim was arbitrarily and illegally denied and that he has been the victim of unnecessary remark which has resulted in development of certain diseases, while he was in duty. According to him the petitioner is entitled for promotion to the post of Subedar. Admittedly the petitioner has retired in the meantime so he should be given the difference of pay on account of promotion to the post of Subedar. He further claimed that since he had been discharged on account of disability, therefore his claim for disability pension has wrongly been rejected. Even his appeal has been arbitrarily refused. His appeal with regard to his promotion was also wrongfully refused despite setting aside of one of the adverse remark by the Chief of Army Staff. The refusal to pay Leave encashment amount and to rehabilitate him had given rise to cause of action, resulting into legal right to enforce the same by way of this petition under Article 226 of the Constitution. Therefore prayer made in the writ petition with regard thereto should be allowed.
(3.) Sri Shishir Kumar, learned Additional Standing Counsel for the Central Government, relying on the statement made in the counter affidavit contends that the details given in the counter-affidavit indicates that the petitioner never fulfilled the criterion for promotion to the post of Subedar in as much as in order to be eligible for such promotion the petitioner should have in his credit either one above average Confidential remarks or two High Average remark in the preceding three years Annual Confidential Reports. The petitioner's case was considered for promotion in the year 1981 and the same was again reviewed after the adverse remark was set aside by the Chief of Army Staff. But still then he was not found eligible for promotion after fulfilling the criterion. His case was again considered in the year 1983 and then again it was found that he did not fulfil the criterion. It is further alleged that the petitioner was granted extension of service for two years. In order to get further extension the petitioner should be medically fit. But it was found that after two years extension the petitioner had developed diseases of hypertension, on account of which he was placed on lower medical category BEE. He was examined by the Medical Board and was then placed in Medical category lower than AYE. According to the Army Rules the petitioner was asked to show cause by the said order dated 23-11-1984 (Annexure-2 to the petition) and his reply thereto was considered. After consideration thereof if was found that he could not be given any further extension on account of his low medical category. Therefore, he could not be retained in service. Therefore, he was discharged on completion of extended period on 23-1-1985. The claim of the petitioner for disability pension was also rejected on the ground that-the petitioner did not acquire the diseases on account of job undertaken by him. It is further stated that leave encashment amount has already been paid to the petitioner it is further submitted that steps were taken for rehabilitating the petitioner by getting him enrolled in the concerned Employment Exchange by letter dated 10-1-1985 and his name was also forwarded to the Rajya Sainik Board for registration.;