S.R.Singh, J. - (1.) Special Appeal No. 132 of 1997, as initially filed, was directed against the judgment and order dated November 27, 1996, disposing of Civil Misc. Writ Petition No. 13885 of 1995 studded with certain observations and the order dated February 5, 1997, dismissing Civil Misc. Review Application No. 655 of 1996 seeking review of the Judgment dated November 27, 1996. When Special Appeal No. 132 of 1997 came up before the Court on March 18, 1997, it was felt that these two orders could not he lumped together for being challenged in one single appeal and hence, to clear the road-block about the maintainability of a single appeal against two orders, the petitioner prayed for and was granted time to file separate appeal impugning the judgment/order dated November 27, 1997 attended with an application for condonation of delay. The appellant, thereafter, filed Special Appeal No. 154 of 1997 against the judgment dated November 27, 1996. Both these appeals as they were intertwined, were admitted for hearing vide Court's order dated April 17, 1997 and heard finally on August 1, 1997.
(2.) Facts that emerge from the materials on record of the writ petition and events leading the appellant to land up in this Court are that the appellant joined the Army Service as a Sepoy on August 28, 1977 and while posted at Panagarh, he chanced to meet with an accident as a result of the Motor Cycle going into a skid in which the petitioner "sustained severe injury" while he was "on bonafide Government duty". The injury was attributed to "Military Service in peace". The petitioner was placed in Medical Category 'B' (Permanent) w.e.f. November 12, 1982 as a case of fracture mid-shaft femur (Lt). "The disability was estimated less than 20%. Upon his submitting a willingness certificate to continue in service and on the recommendation by the O.C. Unit that the individual could be suitably employed in his own trade, the appellant was retained in service in the same trade but harnessed to an alternative job in the public interest, owing to his disability. It appears that the appellant had staked his claim for being remustered or retained as J.C.O. (Religious teacher) called 'Pandit' but the same was concededly rejected vide order dated November 22, 1992 which reads as under ; 1. Refer to your letter No.563/47/ST-12 dated Nov. 4, 1982. 2. Since No. 13832478 Sep/DVR (MT) D.S. Tiwari of your Unit has been down-graded to medical category (B) (Permanent), he is not eligible for re-mustering as a JCO Religious teacher (Pandit). Sd/- (K.V.K. Rao) Capt. Ro For Offg. Officer Incharge." After completion of 10 years of service, a duly constituted Medical Board held on July 12, 1987 at Military Hospital, Dehradun found the appellant medically unfit to be continued in service and accordingly, commended his being relieved of the Army Service. The recommendation met the approbation of A.D.M.S., U. P., area Bareilly on July 30, 1987 and thereafter, the appellant was discharged from Army with effect from September 1, 1987, pursuant to Discharge Order 1,03/87 dated March 1987 which was served to appellant on August 31, 1987. The appellant, then, filed Civil Misc. Writ Petition No. 21823 of 1987 praying for following amongst other reliefs : "(1) Call for the records of the case, issue writ, direction or order in the nature of certiorari quashing the order dated March 20, 1987 passed by opposite party No.4 annexed as Annexure 3 to the writ petition which was served to the petitioner on August 31, 1987. (2) Issue mandmus commanding the opposite parties to send the petitioner to be examined by the Medical Board constituted for the said purpose under the Army Act and Rules and take the petitioner in service forthwith."
(3.) The said writ petition came to be heard and disposed of vide judgment and order dated January 28, 1992. The relevant portion of the judgment reads as below : "It is contended that on account of fracture in the left leg the petitioner, became disabled for discharging his normal functions, therefore, he was discharged. However, his services can be retained as per the provisions contained in Annexure C.A. 1 to the counter-affidavit. The grievance of the petitioner is that despite his several representations and applications for being appointed, nothing has been done. In the counter affidavit, refuting the submission of the petitioner; it is contended that at no point of time, the petitioner made any application for being appointed in accordance with the rules. The relevant rule referred to above finds place in Annexure C.A. I to the counter affidavit wherein in Clause (2) a general principle has been enumerated for retention in service in alternative employment. According to it, ordinarily permanent low medical category personnel will be retained in service till completion of 15 years service in the case of J.C.Os and 10 years in the case of O.R. In the circumstances of the case, if the petitioner is still entitled to get benefits of the above provision and he makes appropriate application for it within a month from today, his application shall be considered and decided according to the Rules within a period of three months from the date of its receipt and the decision taken thereon will be intimated to him. With the above observations, this petition is finally disposed off at the admission stage.";