LODHA, J. - (1.) IN this writ petition, the petitioner has assailed validity of order said to have been passed by the Commanding Officer, 9 JAT, Army Headquarter, New Delhi, whereby he has been discharged from service. IN the alternative, the petitioner has sought direction to grant him disability pension as recommended by the medical Board.
(2.) BRIEFLY stated, the facts of the case are that the petitioner was recruited and inducted as an Infantry Soldier (GD) on 12. 12. 86. At the time of his enrollment, he was subjected to the medical examination by the Military doctors and he was found fit in all respect in medical category `a' (AYE ). While in service, the petitioner suffered from conjunctivitis in both the eyes. After due examination, the medical board placed the petitioner in the lower medical category CEE (Temporary) for a period of 3 months w. e. f. 3. 8. 91. The placement of the petitioner in the aforesaid category was approved by the higher authorities on 7. 8. 91. After expiry of period of 3 months, the petitioner was again brought before the Medical Board wherein the petitioner's medical category was lowered to Cat `cee' (Permanent) and it was indicated in the report that the final medical category would be decided later on and recommendation was made for next medical board to be held on 3. 11. 93. However, before the Medical Board could be held as aforesaid, the petitioner was called by the Commanding Officer under whom he was serving at the relevant time and asked about his willingness for further service and/or to accept alternate appointment commensurate with his low medical category to which the petitioner replied in affirmative. The petitioner was once again reviewed by Classified Specialist in Opthalmology who vide her summary and opinion dated 21. 4. 92 indicated the petitioner's medical category as Cat `cee' (Permanent) with more than 20% of the disability for `excessive ACCOMMODATION BOTH EYES (367)'. However, according to the petitioner, he was never declared unfit for further service. However, instead of extending alternate appointment commensurate with his low medical category, the petitioner was discharged from service w. e. f. 17. 6. 92 in terms of Rule 13 (3) of the Army Rules, 1954 (in short `the Rules of 1954') on the ground set out in clause III (v) under column 2 of the table given below the Rule 13 of the Rules of 1954. No order as such discharging the petitioner from service was served upon him, however, the discharge certificate dated 17. 6. 92 (Annexure-5) has been issued to the petitioner. The representation of the petitioner against the discharge order was rejected vide order dated 3. 1. 94 (Annexure P/11 ). The claim for disability pension of the petitioner was rejected vide order dated 31. 8. 92 and the appeal preferred against the denial of the disability pension was also rejected by the Appellate Authority vide order dated 11. 1. 94 as barred by time. Hence, this petition. The respondents in their reply to the writ petition have taken the stand that the employment of permanent low medical category personnel is subject to availability of suitable appointment commensurate with his medical category and if the same is considered justified in the public interest. It is submitted on behalf of the respondents that since no sheltered appointment was available for the petitioner, therefore, he has rightly been discharged from service by the competent authority in terms of Rule 13 (3) III (v) of the Rules of 1954. It is submitted that before discharging the petitioner from service, a notice dated 13. 4. 92 was issued to him to show cause as to why he should not be discharged from duties for the reason that he has been placed under low medical category `cee' (P) and there is no suitable sheltered appointment compatible to his disability is available in the unit. According to the respondents, in response to the said notice vide application dated 3. 5. 92, the petitioner accepted his discharge from service, the same on account of his inability to perform his duties. It is submitted on behalf of the respondents that a Release Medical Board had assessed the disability of the petitioner as `excessive accommodation both the eyes (367) V-67 6-10%, and further the Medical Board opined that the petitioner's disability was neither attributable to nor aggravated by military service, therefore, the claim of the petitioner for disability pension has also rightly been rejected. In rejoinder to the reply of the respondents, the petitioner has taken the stand that the reply to the show cause notice was obtained from him by giving him the hope that he would get his pension. It is submitted that from reply it cannot be inferred that the petitioner has accepted the discharge voluntarily. It is submitted that by the Medical Board the petitioner was placed under Cat `cee' and never been boarded out in med Cat `eee' i. e. unfit for military service. It is submitted on behalf of the petitioner that from show cause notice it is not clear as to whether the petitioner was asked to defend his cause in relation to the suitable shelter appointment or in relation to the discharge action being in lower medical category. That apart, the show cause notice does not indicate that the discharge proposed therein is in public interest. The learned counsel for the petitioner contended that the discharge of the petitioner on medical ground vide Annexure P/5 is per se illegal inasmuch as per Rule 13 (3) III (iii)) of the Rules of 1954, the discharge on the medical ground can only be carried out on the recommendation of an invaliding Medical Board that an incumbent is medically unfit for further service. The learned counsel submitted that if the discharge action is treated to be taken under Rule 13 (3)III (v) of the Rules of 1954, then, it is bad in law inasmuch as before taking an action to discharge an employee under the said provision, an opportunity of hearing is required to be given by the Brigade/sub Area Commander but in the instant case, no such notice was ever issued by the said authority to the petitioner. The learned counsel submitted that the Commanding Officer had no jurisdiction whatsoever to initiate the discharge proceedings or to pass an order of discharge under Rule 13 (3)III (v) of the Rules of 1954. Thus, the entire proceedings taken and the order discharging petitioner passed by the Commanding Officer is ex facie illegal, arbitrary and without jurisdiction. The learned counsel for the petitioner submitted that by no stretch of imagination from the reply to the show cause notice submitted by the petitioner, it can be inferred that he has accepted the discharge order. The learned counsel submitted that the petitioner was only lowered to medical Cat `cee' (Permanent) and was not found medically unfit, therefore, he could not have been discharged from service on account of lower medical category invoking the power under Rule 13 (3) III (v) inasmuch as for the discharge of medically unfit personnel, the specific provision has been separately incorporated vide Rule 13 (3) III (iii) of the Rules of 1954. The learned counsel submitted that the petitioner's medical category was only lowered to Cat `cee' (P) and the final medical category was to be decided by the next medical board recommended to be held on 3. 11. 93, thus, there was no occasion for the respondent No. 3 to take an unjust and arbitrary action discharging the petitioner from service on 17. 6. 92 without even waiting for outcome of the next Medical Board. The learned counsel relying on Army order 46/80, the learned counsel submitted that ordinarily permanent low category personnel will be retained in service till completion of 15 years service in case of JCOs and 10 years in case of OR (including NCOs), thus the order discharging the petitioner from service issued in defiance of the said Army order is not sustainable in the eye of law. Though, in the petition, the petitioner has raised the claim regarding the disability pension but the same is waived by the learned counsel for the petitioner during the course of arguments. Per contra, the learned counsel appearing on behalf of the respondents while reiterating the stand taken in the reply to the writ petition submitted that the petitioner has been discharged in terms of Rule 13 (3) III (v) and not under Rule 13 (3) III (iii) of the Rules of 1954. The learned counsel submitted that the employment of a personnel placed in permanent low category, at all times, is subject to the availability of alternative appointment commensurate with their category and also to the proviso that this can be justified in the public interest. The learned counsel contended that before discharging the petitioner a show cause notice was issued and in reply thereto the petitioner has accepted the discharge on account of his disability, therefore, he has rightly been discharge from service. On being asked pointedly that as per Rule 13 (3) III (v) the proceedings for discharge can be initiated and discharge order can be passed only by the Brigade/sub Area Commander, therefore, what was the authority of Commanding Officer to issue the notice and discharge the petitioner from service straightaway, the learned counsel has not been able to justify the action.
(3.) I have considered the rival submissions and perused the record. It is not in dispute that the petitioner was lowered to the medical category `cee' (P) and the final medical category was to be decided by the next medical board recommended to be held on 3. 11. 93. However, all of a sudden, the petitioner was served with a notice dated 13. 4. 92, whereby he was directed to show cause as to why he should not be discharged from service in his lower medical category for the reason that no suitable shelter appointment for his employment compatible to his disability was available in the unit. It appears that under Rule 13 (3)III (iii) of the Rules of 1954, the petitioner could not have been discharged from service unless he was found medically unfit for further service on the recommendation of invaliding board, therefore, the respondents have resorted to the proceedings under Rule 13 (3) III (v) of the Rules of 1954. Rule 13 of the Rules of 1954, deals with the authorities empowered to authorise empowered to authorise discharge. Since, the controversy involved in the present writ petition rolls round Rule 13 of the Rules of 1954, therefore, the same is reproduced here under for ready reference.      " (1) Each of the authorities specified in column 3 of the Table below shall be the competent authority to discharge from service person subject to the Act specified in column 1 thereof on the grounds specified in column 2. (2) Any power conferred by this rule on any of the aforesaid authorities shall also be exercisable by any other authority superior to it. (2a) Where the Central Government or the Chief of the Army Staff decides that any person or class or persons subject to the Act should be discharged from service, either unconditionally or on the fulfilment of certain specified conditions, then, notwithstanding anything contained in this rule, the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision. (3) In this table "commanding officer" means the officer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned officers and warrant officers of the Special Medical Section of the Army Medical Corps, the "commanding officer" means the Director of the Medical Services, Army, and in the case of junior commissioned officer and warrant officers of Remounts, Veterinary and Farms Corps, the "commanding Officer" means the Director Remounts, Veterinary and Farms. " In the table set out below the Rule 13 of the Rules of 1954, the grounds of discharge, competent authority to discharge and manner of discharge of various categories of employees have been specified. Regarding the employees falling in the category of persons enrolled under the Act i. e. the category to which the petitioner belongs, the grounds of discharge, competent authority to discharge and manner of discharge, have been specified in clause III (i) to (v) as under: Category ground of discharge competent authority to authorise discharge manner of discharge persons enrolled under the Act who have been attested. III. (i) On fulfilling the conditions of his enrolment or having reached the stage at which discharge may be enforced. Commanding officer and, in the case of a person of the rank of havildar (or equivalent rank) where such person is to be discharged. Otherwise than at his own request and where the commanding officer below the rank of Lieutenant Colonel, the brigade or sub Area Commander, (SRO 116/65 ). III. (ii) On completion of a period of army service only, there being no vacancy in the Reserve. Commanding officer (in the case of persons unwilling to extend their Army service ). Applicable to person enrolled for both Army service and Reserve service. (A person Who has the right to extend his Army service and wishes to exercise that right cannot be discharge under this head ). III (iii) Having been found medically unfit for further service. Commanding officer to be carried out only on the recommendation of an invaliding Board. III (iv) At his own request before fulfilling the conditions of his enrolement. Commanding officer the Commanding Officer will exercise the power only when he is satisfied as to the desirability of sanctioning the application and strength of the unit will not thereby be unduly reduced. III (v) All other classes of discharge. Brigade/sub Area Commander the Brigade or Sub Area Commander before ordering the discharge shall, if the circumstances of the case permit give to the person whose discharge is contempleted an opportunity to show cause against the contemplated discharge A bare perusal of the aforesaid table goes to show that an enrolled person under the Act, who have been attested can be discharged from service on various grounds. As per clause III (iii), a person having been found medically unfit for service, the Commanding Officer of the unit can discharge the personnel only on recommendation of invaliding board. A perusal of the notice (Annexure R/1) issued by the Commanding Officer, goes to show that the petitioner was proposed to be discharged from service in his lower medical category, for the reason that no suitable shelter appointment for his employment compatible to his disability was available in the unit. Admittedly, the petitioner has been discharged from service under clause III (v) which deals with all other classes of discharge, which are not covered by clause III (i) to III (iv ). It is to be noticed that the competent authority to authorise discharge under clause III (v) is the Brigade/sub Area Commander. As per column 4 of the table which deals with the manner of discharge, if discharge of a personnel is contemplated on the ground specified in clause III (v) then before ordering the discharge, the Brigade or Sub Area Commander, if the circumstances of the case permit, shall give to the person whose discharge is contemplated an opportunity to show cause against the contemplated discharge, therefore, the proceedings for discharge of any personnel under clause III (v) could have been initiated only by the Brigade/sub Area Commander. A bare perusal of the notice Annexure -R/1 placed on record by the respondents goes to show that the same has been issued by the Commanding Officer of the unit, who had no authority whatsoever to initiate the proceedings against the petitioner for discharge on the ground set out therein. It is pertinent to note that the petitioner has taken the specific ground that no show cause notice as required by Rule 13 (3) III (v) has been issued by the competent authority and thus the discharge action by the respondent No. 2 i. e. is illegal and void ab initio. However, the respondents have not come out with the case that any proceedings as contemplated by clause III (v) was ever initiated by the competent authority. It is not in dispute that the petitioner has been served with only the discharge certificate (Annexure P/5) issued by the Commanding Officer. No order discharging the petitioner from service passed by the authority competent, has been placed on record by the respondents. It is pertinent to note that clause II (v) deals with all other classes of discharge, which are not specifically provided for, therefore, the specific provision has been incorporated that before ordering the discharge the Brigade/sub Area Commander shall give to the person whose discharge is contemplated an opportunity to show cause against the contemplated discharge. Thus, in my considered opinion, ordinarily while invoking the power of discharge under clause III (v) the person concerned has to be given an opportunity of hearing. Obviously, if any such circumstances exist, then, the reasons are required to be recorded in writing by the competent authority. In any case, the Commanding Officer had no jurisdiction to initiate the proceedings and discharge the petitioner under clause III (v) as aforesaid. Therefore, in absence of any order discharging the petitioner passed by the competent authority in terms of clause III (v) under Rule 13 of the Rules of 1954, the discharge of the petitioner from service is ex facie illegal and without jurisdiction and deserves to be quashed and set aside. ;