SMT. SULEKHA RANI versus UNION OF INDIA AND ORS. on 16 July 2019

1. Admit.

2. This appeal arises from a judgment of the Armed ForcesTribunal[1] at its Principal Bench, New Delhi. While dismissing the OriginalApplication filed by the appellant, the AFT has rejected her claim forgrant of pension in respect of the service rendered by her deceasedspouse in the Indian Army.

3. The spouse of the appellant was enrolled in the Army on 23April 1994. He was posted at the Siachen Glacier from 13 September1998. He was in SHAPE 1 medical category. On 30 August 2000, hewas downgraded to low medical category P2. He was then shifted to acounter insurgency area in Jammu and Kashmir on 19 November 2000.On 31 August 2001, he was discharged from service. About 6 yearsafter the discharge, he died on 30 September 2007, leaving behind himthe appellant and their children. A proceeding was initiated before theAFT for the grant of pension. This was denied to the appellant.

4. The grievance of the appellant is that no Invalidation MedicalBoard was held prior to the discharge of her spouse. He was in SHAPE1 medical category before being posted for 7 months at the SiachenGlacier. Relying on the decision of this Court in Dharamvir Singh vUOI[2], it has been submitted that a member of the force is presumed tobe in sound physical and mental condition upon entering service if thereis no contrary record at the time of entry. The submission is based onthe following extract from the decision:

“24.2. A disease which has led to an individual’s dischargeor death will ordinarily be treated to have been arisen inservice, if no note of it was made at the time of theindividual’s acceptance for service in the Armed Forces.”

29.2. A member is to be presumed in sound physical andmental condition upon entering service if there is no noteor record at the time of entrance. In the event of his 1 AFT

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Asubsequently being discharged from service on medicalgrounds any deterioration in his health is to be presumeddue to service [Rule 5 read with Rule 14(b)]

Reliance is also placed upon the decision of this Court in Unionof India v Rajpal Singh[3](“Rajpal Singh”). In that case, theBRespondent, a Junior Commissioned Officer (JCO), was placed in thepermanent low medical category for a period of two years before hewas discharged. Before the expiry of this period, he was sent a notice toshow cause as to why he should not be discharged from service as nosheltered appointment was available and his unit was deployed in a fieldCarea. A two judge Bench of this Court held his discharge invalid on theground that the Respondent had not been subjected to an InvalidatingBoard under Rule 13(3)(I)(ii) of the Army Act, 1950[4].

5. On the other hand, Mr Aman Lekhi, ASG submitted in thepresent case that a notice to show cause was issued to the spouse of theDappellant on 2 March 2001. The show cause notice was in the followingterms:

“1. You have been placed in low medical category BEE (P) witheffect from 30 Aug 2000. You are willing to serve in presentmedical category but no sheltered appointment is available forEyou in the unit. Therefore, it is proposed that you should bedischarged from service having placed in medical category lowerthan AYE and not upto the required standard under the provisionsof Army Order 46/80 Rule 13(3) III (v) of Army Rules 1954.”

In response to this notice, a reply was addressed on 7 April 2001Fstating that though he wished to continue in the service of the Army,since he was being discharged from service due to non-availability of asheltered appointment in the unit, he may be discharged in a manner thatwould enable him to obtain other service in the civilian section. On thebasis of this response, it was urged that the Jawan had in fact acceptedhis discharge and as a result, there was no necessity to appoint anGInvalidation Board. The order of discharge (it was urged) was notappealed against in accordance with the provisions of law. The learnedASG has submitted that the decision in Dharam Singh (supra) deals 3 (2009) 1 SCC 216

H4 “Army Act”

with the provisions of Rule 14(b) and hence may not have application.Moreover it was urged that the spouse of the appellant had an EctopicKidney and his condition was not caused or aggravated by military service.It has been urged that the affliction was of a constitutional nature andwas not attributable to service in the Army.

6. In the present case, it is not in dispute before this Court that noInvalidation Medical Board was held. The show cause notice uponwhich reliance has been placed is dated 2 March 2001 and reference ismade to Rule 13(3) (III) (v).

7. Rule 13 deals with Authorities empowered to authorizedischarge. It provides thus:

“13. Authorities empowered to authorize discharge. (1) Each ofthe authorities specified in column 3 of the Table below shall bethe competent authority to discharge from service person subjectto the Act specified in column 1 thereof on the grounds specifiedin column 2.

(2) Any power conferred by this rule on any of the aforesaidauthorities shall also be exercisable by any other authority superiorto it.

[(2A) Where the Central Government or the Chief of the ArmyStaff decides that any persons subject to the Act should bedischarged from service, either unconditionally or on the fulfillmentof certain specified conditions, then, notwithstanding anythingcontained in this rule, the Commanding Officer shall also be thecompetent authority to discharge from service such person orany person belonging to such class in accordance with the saiddecision.]

(3) In this table “commanding officer” means the officercommanding the corps or department to which the person to bedischarged belongings except that in the case of juniorcommissioned officer and warrant officers of the Special MedicalSection of the Army Medical Corps, the “commanding officer”means the Director of the Medical Services, Army, and in thecase of junior commissioned officer and warrant officers ofRemounts, Veterinary and Farms, Corps, the “Commanding A

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Aofficer” means the Director Remounts, Veterinary and Farms.”

In so far as is material to the discussion before us, Rule 13(3)(III)

provides as follows:

CategoryGrounds of Competent authority Manner of discharge discharge to authorise Bdischarge Persons (iii) Having been found Commanding OfficerTo be carried out only on enrolled under medically unfit for the recommendation of the Act who further service. an Invalidating Board. have been attested (iii) (a) Having been Commanding OfficerThe individual will be Cfound to be in discharged from service permanent low medical on the recommendations category SHAPE 2/3 of Release Medical by a medical board Board.and when— (i) no sheltered appointment is Davailable in the unit, or (ii) is surplus to the organisation. (v) All other classes of Brigade/Sub-area The Brigade or Sub-area discharge. Commander Commander before ordering the discharge Eshall, if the circumstances of the case permit give to the person whose discharge is contemplated an opportunity to show cause against the Fcontemplated discharge.

8. Rule 13(3) (III) (v) is in the nature of a residuary provision. Itcovers all other classes of discharge or, in other words, discharge whichdoes not fall under the preceding categories. The specific provision inregard to medical unfitness is provided in Rule 13(3)(III)(iii) where aGperson has been found medically unfit for further service. The mannerof discharge provided is, “only on the recommendation of an InvalidatingBoard”. The provision contained in Rule 13(3)(III)(iii)(a) which providesfor a discharge on the recommendations of the Release Board wasinserted on 29 May 2010 and hence, has no application to the presentcase.

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SMT. SULEKHA RANI v. UNION OF INDIA AND ORS.[DR. DHANANJAYA Y CHANDRACHUD, J.]

9. In Rajpal Singh (supra), while interpreting 13 (3)(I) of theRules, the Court noted that only cases which are not covered under aspecific head can be covered under a residual head:

“24. … It is plain that a discharge on the ground of having beenfound “medically unfit for further service” is specifically dealtwith in Column (I) (ii) of the Table, which stipulates that dischargein such a case is to be carried out only on the recommendation ofthe Invalidating Board. It is a cardinal principle ofinterpretation of a Statute that only those cases or situationscan be covered under a residual head, which are not coveredunder a specific head. It is, therefore, clear that only thosecases of discharge would fall within the ambit of the residualhead, viz. I (iii) which are not covered under the precedingspecific heads. In other words, if a JCO is to be dischargedfrom the service on the ground of “medically unfit for furtherservice”, irrespective of the fact whether he is or was in a lowmedical category, his order of discharge can be made only on therecommendation of an Invalidating Board. The said rule beingclear and unambiguous is capable of only this interpretation andno other.(emphasis supplied)

The Court further noted that when the discharge was on the groundof medical unfitness, the Rule prescribes a particular procedure fordischarge. Thus, an order of discharge passed without subjecting theofficer to an Invalidating Board would be contrary to the statutory rule:

“27. In view of the foregoing interpretation of the relevant rule,we are in complete agreement with the High Court that where aJCO is sought to be discharged on the ground of medical unfitnessfor further service, his case has to be dealt with strictly inaccordance with the procedure contemplated in Clause I (ii) inColumn 2 of the Table appended to Rule 13. The Rule prescribesa particular procedure for discharge of a JCO on accountof medical unfitness, which must be followed and, therefore,any order of discharge passed without subjecting him toInvalidating Board would fall foul of the said statutory rule.”

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A10. After considering the facts and material before us, we are ofthe view that the discharge of the appellant’s spouse without conveningan Invalidation Medical Board suffers from an illegality. The respondentshave relied upon the response purportedly addressed by the Jawan tothe notice to show cause issued to him. The provisions Rule 13(3) (III)(v) upon which reliance has been placed had no application to the case.BIt would not operate in an area which is covered by medical unfitness.

11. Having weighed the nature of the relief that should be grantedto the appellant, we are of the view that the case of the appellant forgrant of family pension deserves to be accepted. We direct that for theCpurposes of computing the family pension, the service of the deceasedspouse of the appellant should be deemed to have continued until 30September 2007. No arrears of wages shall be payable between thedate of discharge and the date of death. The arrears of family pensionshall be paid to the appellant within a period of three months from thedate of receipt of a certified copy of this order. The appellant isDaccordingly held to be entitled to family pension on the above basis.

12. We allow the appeal in the above terms and set aside theimpugned judgment of the Armed Forces Tribunal dated 28March 2011.In the circumstances of the case there shall be no order as to costs.

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Devika Gujral

Appeal allowed.

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