Rajasthan High Court - Jodhpur
Sep Satish Kumar Saini (No. 14802708W) vs The Union Of India on 28 November, 2019
Equivalent citations: AIRONLINE 2019 RAJ 1058
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17242/2019 Sep Satish Kumar Saini (No. 14802708W) S/o Shri Kartar Singh Saini, Aged About 48 Years, Permanent Resident Of Gulshan Vihar Colony, Jansath Road, Near N.e.p.c., Post New Mandi, Tehsil And District Mujaffarnagar (Uttar Pradesh). (Presently Serving At No. 368 Dsc Pl Att To No. 33 Su, Air Force Pin 937033 C/o 56 Apo).
----Petitioner Versus
1. The Union Of India, Through The Secretary, Ministry Of Defence, Government Of India, Room No. 234, South Block, New Delhi-110001.
2. The Director General Of Personnel (Dsc Wing), Army Headquarters, Sena Bhawan, South Block Dhq Po, New Delhi-110001.
3. The Defence Security Corps Records, Pin 901277 C/o 56 Apo, Through Officer In-Charge, Dsc Records.
4. The Officer In-Charge Dsc For Station Commander, 368 Dsc Pl Att To No. 33 Su Air Force Pin 937033 C/o 56 Apo.
----Respondents
For Petitioner(s) : Mr. S.P. Sharma
For Respondent(s) : Mr. Deelip Kawadia
JUSTICE DINESH MEHTA
Order
28/11/2019
The present writ petition has been preferred against the order dated 23.10.2019, issued by the respondents. Though an Original Application lies before the Armed Force Tribunal under the provisions of Section 14 of the Armed Force Tribunal Act, 2007 against such order, yet, counsel for the petitioner insisted to hear the present writ petition, asserting that Bench of the Armed Force (Downloaded on 02/12/2019 at 08:43:21 PM) (2 of 5) [CW-17242/2019] Tribunal is not presently functional in Jodhpur and the petitioner cannot be rendered remediless, particularly when he is likely to be discharged on 30.11.2019.
The Court thus, proceeds to hear/decide the present writ petition, despite realising in jurisdictional constraints, lest the petitioner should not have a feeling of being rendered remediless.
Concededly, the impugned order dated 23.10.2019, has been passed in exercise of Rule 13 of the Army Rules, 1954 (for short, 'the Rules of 1954'). While passing the impugned discharged order, medical examination of the petitioner was conducted and the Medical Board gave its report dated 26.04.2018 and found him unfit, with the following expression:-
"Placed in low medical classification P3(T024) w.e.f. 26.04.2018."
In furtherance of the report aforesaid, the impugned order came to be passed.
Challenging the order, Mr. Sharma, learned counsel for the petitioner contended that the order impugned deserves to be quashed being contrary to the provisions of the rules and judgment of Hon'ble the Supreme Court, rendered in the case of Union of India Vs. Rajpal Singh, reported in (2009) 1 SCC 216.
Mr. Kawadia, learned counsel for the respondents, on the other hand, cited judgment of Armed Force Tribunal, rendered in the case of Sub Ramavtar Singh Vs. UOI & Ors. [O.A. No.1164/2018], decided on 31.07.2018. He argued that the Armed Force Tribunal has held that only two requirements are to be fulfilled, before discharging a person under Rule 13 of the Rules of 1954, which are :
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(3 of 5) [CW-17242/2019] "(1) the individual must have been found to be in permanent low medical category SHAPE 2/3 by a medical board (nor necessarily Release Medical Board).
(2) no sheltered appointment is available in the unit. Or he is surplus to the organization." The basic contention of Mr. Sharma for chalelnging the order impugned has been that the respondents have not recorded a finding of non-availability of sheltered appointment and thus, pre-requisite of applicability of Rule 13 of the Rules of 1954 is absent; and that the report has been given by the Medical Board, whereas it has to be given by an invaliding medical board, as has been held by Hon'ble the Supreme Court in the case of Union of India Vs. Rajpal Singh (supra).
Without going into jugglery of the judgments, when the Court asked Mr. Sharma to refer to the relevant provisions, which govern discharge of an armed force personnel, he referred to Rule 13 of Army Rules, 1954 and handed over Bare Act for perusal.
Upon deeper scrutiny, this Court was upset to find that such Rule had been amended in 2010 itself, vide notification dated 13.05.2019, according to which, only twin conditions are required to exist, if the Commanding Officer decides to discharge an armed force personnel on account of medical disability, which are; (i) there is a satisfaction of a non-availability of sheltered appointment, and (ii) that a medical board has given a certificate of his unfitness.
Adverting to the contention of Mr. Sharma that the report relied upon by the respondents is that of medical board and not of invaliding board, suffice it to mention that in the amended (Downloaded on 02/12/2019 at 08:43:21 PM) (4 of 5) [CW-17242/2019] rules, the requirement has been amended and now it is the recommendation of the medical board only for ascertaining the existence of ground of discharge. Relevant part of the Table, appended to Rule 13 is being reproduced hereunder:-
Category Grounds of discharge Competent Manner of authority to discharge authorise discharge 1 2 3 4
(iii)(a) Having been found Commanding Officer The individual to be in permanent low will be medical category SHAPE discharged 2/3 by a medical board from service and when:- on the
(i) no sheltered recommendatio appointment is available ns of Release in the unit, or Medical Board.
(ii) At his own request
before fulfilling the
conditions of his
enrolment.
A simple look at the provision aforesaid, leaves no manner of doubt that proper satisfaction of non-availability of sheltered appointment has been recorded and the medical board has given its report of unfitness of the petitioner, which is due compliance of the provisions of Rule and stipulation in the table appended thereunder.
Prior to the amendment of 2010, the above table contained following provision:-
Category Grounds of discharge Competent Manner of authority to discharge authorise discharge 1 2 3 4
(iii)having been found Commanding To be carried out medically unfit for further Officer only on the service. recommendation of an invaliding Board.(Downloaded on 02/12/2019 at 08:43:21 PM)
(5 of 5) [CW-17242/2019] The judgment relied upon by Mr. Sharma in the case of Union of India Vs. Rajpal Singh (supra), had been rendered on 07.11.2008, obviously when the Rules had not undergone the amendment. And thus, such judgment cannot be applied in the present factual backdrop.
So far as recording of satisfaction of sheltered appointment is concerned, the impugned order clearly contains a finding that no sheltered appointment is available in DSC.
In this view of the matter, this Court does not find any substance in the writ petition, for which it is dismissed.
The stay application also stands dismissed.
(DINESH MEHTA),J 378-skm/-
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