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Judgment
Sanjay Kishan Kaul, J.—The petitioner was enrolled in the Madras Regiment of the Army as a Sepoy on 09.11.1958 and during the Indo-Pak war in 1971 sustained injuries in a mine blast during an operation on 09.05.1972. The result was that the petitioner lost his eye sight in one eye. The petitioner was downgraded to medical category CEE (Temporary) for the period 20.01.1973 to 19.03.1975 and was thereafter upgraded to medical category BEE (Permanent) for the period 20.03.1975 to 18.12.1984. The petitioner was again downgraded to the medical category CEE (Permanent) on 19.12.1984 and his next review medical board was scheduled for 19.12.1986.
It is the claim of the petitioner that there was some animosity of the Commanding Officer towards the petitioner with the result that the petitioner was issued a show cause notice dated 25.03.1985 for discharge from service on account of non availability of suitable sheltered appointment consequent to the petitioner being placed in the permanent low medical category. The petitioner was thus sought to be discharged from service under 13(3)(I)(iii) of the Army Rules, 1954 ("the said Rules" for short). The petitioner submitted a reply dated 29.03.1985 stating that as per the policy of the Army Headquarters, all battle casualties are to be retained in military service till the age of superannuation and the date of superannuation of the petitioner in the rank of Subedar was 30.11.1986. The petitioner thus protested against the premature discharge. The discharge order was thereafter cancelled on 17.08.1985 but the travails of the petitioner again began when on 10.09.1985 a letter was issued to the petitioner cancelling the letter dated 17.08.1985 and processing the case of the petitioner for discharge from service. The petitioner was finally discharged from service on 31.12.1985, 11 months prior to his scheduled date of discharge.
The petitioner has raised the following two issues in the present writ petition:
i) The petitioner being a battle casualty soldier could not have been discharged on the ground of absence of a sheltered appointment in view of the Army Headquarters policy letter dated 18.05.1977; and
ii) The petitioner would have been entitled to promotion to the rank of Subedar Major if he had continued in service and in that eventuality would have been entitled to a four-year extension of service up to 30.11.1990.
In the counter affidavit, it has been explained that insofar as the promotion of the petitioner to the post of Subedar Major is concerned, the petitioner was considered in 1980, 1982 and 1984 by the Departmental Promotion Committee but his case for promotion was not accepted. The representation of the petitioner against supersession also did not find favour and the decision of the Chief of Army Staff in that behalf had been conveyed to the petitioner vide letter dated 08.08.1985. It has also been stated that since there was non availability of the sheltered appointment, the petitioner was discharged under Rule 13(3)(I)(iii) of the said Rules with effect from 01.01.1986. The respondents have also disputed the receipt of reply to the show cause notice by the petitioner as the same was not received by the respondents.
It also emerges from the annexures to the counter affidavit that a letter dated 19.08.1985 was sent by the Senior Record Officer, OIC Records noticing that the petitioner is liable to be retained in service till completion of his normal tenure being a battle casualty person and that is the reason that the show cause notice was withdrawn in terms of letter dated 17.08.1985.
The letter dated 10.09.1985 thereafter issued does not disclose the reasons why the letter dated 17.08.1985 was recalled and the counter affidavit is also silent on that behalf but the reasons became apparent from Annexure ''U'' to the counter affidavit which is a confidential note of the Commanding Officer dated 31.08.1985. It is alleged that the petitioner used to pick up quarrels with the superiors and that the fact of the petitioner being a battle casualty person should not give him the immunity to misbehave. A recent example of the conduct of the petitioner is stated to be an incident which occurred in the month of June, 1985 when there was a quarrel with a Senior JCO and the petitioner is stated to have said "Tum logon ki wajah se desh barbad ho raha hai"
We are of the view that from the aforesaid facts it clearly emerges that insofar as the claim of the petitioner for promotion is concerned, that being the second issue, the petitioner can make no grievance as the petitioner has been considered and not found fit. The representation of the petitioner was also rejected. Thus the claim of the petitioner that if he had been retained in service till his date of superannuation of 30.11.1986, he may have earned a further promotion entitling him to continue in service for another four years is misconceived and is rejected.
The first claim of the petitioner, however, remains which is his entitlement to continue in service till the date of his superannuation as a battle casualty person. This claim is predicated on the policy dated 18.05.1977. The relevant portion of the policy in para 4 (ii) is as under:
Battle casualties and attributable cases:
Except as provided in (i) above, battle casualties and attributable cases will continue to be retained in service till they become due for discharge as per para 5.
The aforesaid shows that a battle casualty person is liable to be retained in service till he becomes due for discharge as per para 5 of the policy. The relevant para in that behalf is as under:
All personnel retained in service in terms of the proceedings paragraphs will, under all circumstances, be discharged on completion of their engagement periods retiring service limits.
The aforesaid leaves no doubt that the petitioner was entitled to continue in service till his age of superannuation. In fact, this is also the reason why the letter was issued by the Record Office on 17.08.1985 recalling the earlier show cause notice dated 25.03.1985. This fact is recorded in the subsequent letter dated 19.08.1985 in the following terms:
Sub MTV Kunhikannan Nambiar (JC 54976X) was interviewed by the OIC Records on 17.08.1985. OIC Records has directed to retain the above JCO who is in permanent low medical category of battle casualty in service till completion of his normal tenure of service, is 09.11.1986. The Madras Regiment Centre is being asked to return the above JCO to you.
Discharge orders issued vide this office letter under reference (serial 1) has been cancelled vide this office letter No. 01490/232/Adm-2 dated 17.08.1985
The confidential note annexed to the letter dated 31.08.1985 of the Commanding Officer shows that the claim was one of disciplinary action against the petitioner, if at all. No steps were taken against the petitioner on any disciplinary grounds and we may observe that it could hardly have been taken on the basis of an incident where the utterance was only as referred to aforesaid. This establishes that the apprehension of the petitioner of a malice towards him by the Commanding Officer is not misplaced.
We are thus of the considered view that the petitioner was entitled to continue in service till 30.11.1986 being a battle casualty person as per the policy of the respondents dated 18.05.1977 and thus must be treated to have been superannuated on that date. The petitioner would be entitled to all consequential benefits including of pay and allowances.
A writ of mandamus is issued directing the respondents to pay all emoluments including pay and allowances treating the petitioner as having superannuated from service on 30.11.1986 instead of being prematurely discharged with effect from 31.12.1985.
The petitioner shall also be entitled to costs quantified at Rs. 5,000/-.
We may note that inadvertently the matter was taken with a batch of matters earlier resulting in recording of the last order while the present case is not connected with the batch.
The petition stands allowed in the aforesaid terms.