R.L. Anand, J. - (1.) Subedar Hari Ram, who retired as Naib Subedar, has filed the present writ petition under Articles 226/227 of the Constitution of India against the respondents and has made a prayer that a writ in the nature of certiorari be issued setting aside the order dated 1.2.1997 vide which his services had been struck off w.e.f. 1.3.1997 on medical ground as according to the petitioner this order is illegal, arbitrary and has been passed in a mechanical manner. The petitioner has further made a prayer that a writ in the nature of mandamus be issued directing the respondents to reinstate him into service and further that declaration be given to him that he is entitled to all the benefits of service including the pension benefits.
(2.) The case set up by the petitioner is that he joined the Army as Sepoy/ Draftsman on 22.2.1971. He was promoted as Naik in the year 1985 and in June, 1988 he was promoted as Havaldar. He was promoted as Naib Subedar in February, 1992. Further he was promoted as Subedar on 1.12.1995. He was admitted in the hospital on 16.1.1996 on account of failure of kidney. On 7.9.1996 he was placed in low medical category C permanent. In the month of October, 1996 his willingness was taken for continuation into Army service and on 22.2.1997 he was retired from service as Naib Subedar after 26 years of service. The grievance of the petitioner that he became Subedar w.e.f 1.12.1995 but he was down graded in the cadre due to his ailment. He was working in the supervisory capacity. Since he was Subedar, therefore, he was entitled to serve the Army for a period of 28 years. If he was to be retired as Naib Subedar, he should have been given the opportunity. The respondents have committed gross illegality in retiring him by down grading his rank to the post on Naib Subedar. Due to illegal retirement the petitioner lost two valuable years of service. He has suffered a loss of more than Rs. 500/- per month in terms of his pensioner benefits.
(3.) Notice of the writ petition was given to the respondents, who denied the allegations. According to The respondents, the petitioner was enrolled in the Army on 22.2.1971. He was promoted to the rank of Paid Acting Subedar on 1.12.1995. He was admitted in the hospital on 16.1.1996 and his disease was diagnosed as Chronic Renal Failure. Thereafter he was transferred to Army Hospital, Delhi Cantt. for further treatment on 19.1.1996. He was discharged from the Army services under the provisions of Rule 2-A of the Army Rules, 1954. This action is totally legal. The petitioner remained admitted in the hospital in his paid acting rank for more than 60 days and as a result of this his paid acting rank of Subedar was relinquished on 16.3.1996. The petitioner was placed in permanent low category C on 7.9.1996. He was liable to be discharged on 28.2.1997 on completion of 26 years of service. The other averments of writ petition were denied by the respondents and they prayed for the dismissal of the writ petition.;