Baljor Singh vs Union Of India
1997 Latest Caselaw 7 Del

JUDGMENT

Devinder Gupta, J.

(1) Two orders dated 17.11.1994 and 11.2.1995 (annexure-P.1) passed by the respondents denying the claims for disability pension and disability benefits under the Army Group Insurance Scheme are under challenge by the petitioner in this petition filed under Article 226 of the Constitution of India.

(2) The petitioner joined army on 1.5.1975 as a Sepoy in Rajputana Rifles. On 2.5.1982, he was transferred to Intelligence Corps as Translator/Heraldry (Chinese language). The petitioner was promoted as Naib Subedar on 12.9.1983 and to the rank of Subedar on 1.11.1989. He became substantive Subedar w.e.f. 1.11.1990. On 9.6.1990, the petitioner was posted to 23, Wireless Experimental Unit, Rankest at which place he continued to serve till 31.8.1994.

(3) As a result of the petitioner's involvement in an accident of two army vehicles, on 2.2.1993, the petitioner sustained multiple fracture in the right ankle. He was admitted to Military Hospital, Rankest for treatment. Because of indication of Gangrene in the right leg, he was transferred to Command Base Hospital, Lucknow, where his right leg below the knee was amputated on 8.2.1993. On 3.3.1993 the petitioner was transferred to Artificial Limb Centre, Pune where he was provided with an artificial limb below knew in the right leg and consequently, he was placed in Low Medical Category "CEE" (Permanent) w.e.f. 10.7.1993 by the Medical Board and his disability was assessed as 60% permanent, for which discharge/disability certificate was issued by the Artificial Limb Centre, Pune. The disability of the petitioner was wholly attributable to military service as per the orders passed by the Competent Authority.

(4) It is the petitioner's case that had his case been duly processed under Army Order No.46/80 and under Army Headquarter's letter dated 24.3.1992 governing discharge of permanent low medical category personnel, he would have been discharged from service w.e.f. 10.7.1993 on medical grounds with normal service pension, as admissible for 19 years and 4 months of service to his credit. Instead of doing so his retention in service in public interest was accorded with effect from the date of placement in low medical category. Keeping in view the fact that the Translator Category personnel were much deficient in work and that the petitioner was a sincere and hard working J.C.O. and had been assessed as an above average J.C.O. in his A.C.Rs. and had also been recommended for further promotion to the next rank of Subedar-Major and for the grant of Honorary Commission, the Commanding Officer expressed full sympathies with the petitioner's difficulties and on persuasion from the Commanding Officer and other sincere officers of the Unit and keeping in mind the future of his family and chldren, the petitioner gave his willingness for being retained in service. His retention in service in low medical category - CEE(P) was duly recommended by the Commanding Officer of the Unit and was approved in public interest w.e.f. 10.7.1993 for so long as the petitioner was held within the over-all sanctioned strength of the Corps till completion of the normal terms of engagement/retiring service limit or so far the sheltered appointment was available, which ever was earlier. It was done under Government of India, Ministry of defense letter dated 10.5.1977, enclosed as annexure-'A' to Army Order No.46/80 (annexure-P.5).

(5) The petitioner further alleged that he kept on performing his duties and discharging the work to the entire satisfaction of his seniors despite the fact that he used to experience difficulty in the discharge of his duties due to recurring pain in his amputated leg but he never complained about his difficulties to any one. It is further alleged that due to some unknown reasons the O.C.Section Major Eisenhower started harassing him. (We need not enter into this controversy and for that reason need not notice the allegations made by the petitioner against the O.C.Section since the said officer is not a party to this petition). The petitioner was deputed to perform night duties. The petitioner expressed his difficulties of recurring pain due to continuous use of artificial limb on his right leg. The attitude of the Officer-in-charge of the section towards him was not favourable. The petitioner, thereafter sought exemption from night duty. His application was duly recommended by the J.C.O. Incharge Section on 31.3.1994 but his request was turned down without giving even an opportunity of being heard. When the petitioner found the atmosphere to be uncongenial and unfavourable, he was left with no other option except to make a request for his pre-mature retirement on the basis of application (annexure- P.8) on medical grounds as per the dictates of his O.C.Section on 30.3.1994.

(6) It is the petitioner's case that his request for discharge on medical grounds was duly recommended by the Commanding Officer and he was discharged from service w.e.f. 31.8.1994 in terms of Rule 13(3) item (i)(b) of the Army Rules. According to the petitioner, he ought to have been discharged under the provisions of the Ministry of defense letter dated 10.5.1977, attached as appendix 'A' to Army Order 46/80 (annexure-P.5) on medical grounds. The petitioner thereafter applied for being granted his full service pension as well as disability pension and the benefits under the Army Group Insurance Scheme, but his claim for the last two benefits was rejected through the impugned orders on the ground that since the petitioner had been discharged from service under the aforementioned rule on his own request before completion of the prescribed service/age limit, he is not entitled to disability pension and the benefits under the Scheme.

(7) Both the orders (annexure-P.1) are under challenge by the petitioner on the ground that the same are arbitrary, unjust, illegal and contrary to the provisions stipulated in Pension Regulations for Army, 1961 (Part 1) and Army Order 46/80. On being placed in low medical category w.e.f. 10.7.1993, the petitioner ought to have been treated as invalided from service with service pension and disability pension, as admissible under the Rules in terms of Army Order 46/80 within six months from the date of his being placed in low medical category. Being a sincere and hard working officer, on persuation of the Commanding Officer and other officers/colleagues and keeping in view the welfare of his family and children, the petitioner gave willingness for being retained in service, which was accorded in public interest on the recommendation of the Commanding Officer. He continued to perform his duties to the satisfaction of his superiors but it was under compelling circumstances (not of his own volition) that he was forced to seek discharge from army. This discharge ought to have been considered under Army rule 13(3) Item I(II) on medical grounds and not under Army Rule 13(3) item 1(i)(b). In addition to the service benefits, the petitioner ought to have been given the benefit of disability pension and disability cover under the A.G.I.Scheme. The mere fact that a request had been made for discharge by the petitioner when he felt difficulty in discharging his duties including night duties, the same ought not to have been considered as a voluntary discharge but discharge on medical grounds.

(8) The petition is vehemently resisted by the respondents on numerous grounds. The respondents in their reply filed on the affidavit of Major Raveendran, Intelligence Officer, have not disputed the basic facts. It is stated that though the petitioner's case was duly recommended for disability pension, he was held not entitled to the same due to voluntary discharge after he had been provided sheltered appointment. It is further stated that in view of Regulations 50, 173, 178 and 179 of the Pension Regulations of Army Part I (1961), an officer who retires voluntarily is not eligible for an award on account of any disability. Since the petitioner got himself discharged from service on his own request on extreme compassionate grounds before fulfillling the conditions of his sheltered appointment, he was rightly held not entitled to the grant of disability pension under para 173. After pre-mature discharge of the petitioner from service, his papers were sent to the Chief Controller of defense Accounts (Pension), Allahabad. He was granted service pension at the rate of Rs.1029.00 per month w.e.f. 1.9.1994 for life. The case for disability pension was rejected. The petitioner was also found ineligible for Army Group Insurance Disability Benefit since he was discharged at his own request. He was provided sheltered appointment but left the service pre-maturely.

(9) We have heard learned counsel for the parties and have been taken through the entire record.

(10) Regulation 50 in the third Section of the Pension Regulations under the heading Disability Pensionary Awards states that an officer who retires voluntarily shall not be eligible for an award on account of any disability. This regulation cannot apply to the petitioner since he was not an officer, but a J.C.O., to whom Regulations under Section Iv of the Regulations dealing with Disability Pensionary Awards to individuals referred to in regulation 112 would apply. Regulation 173 states that a disability pension may be granted to an individual who is invalided from service on account of a disability, which is attributable to or aggravated by military service and is assessed at 20 per cent or above. The other pension Regulations, namely, 178 and 179 are not relevant for the purposes of the instant petition.

(11) Invalidity from service on account of disability attributable to or aggravated by military service is a condition necessary for the grant of disability pension and an individual, who at the time of his release is placed in Low Medical Category than that in which he was enrolled is treaded as invalided from service. Entitlement Rules in Appendix Ii to the Pension Regulation also states that J.C.O's/other Ranks or NC's(E), who are placed permanently in low medical category other that 'A' and are discharged because no alternative employment suitable to their low medical category can be provided as well as those who have been retained in alternative employment but later on are discharged before completion of their engagement will be deemed to have been invalided out of service. Even for grant of Army Group Insurance Pension - disability benefit to Low Medical Category personnels discharged on request or after expressed unwillingness to serve in sheltered appointment or due to any reason is taken as not eligible for the benefit.

(12) The crucial question, in the light of the facts, as have been stated would be that whether the petitioner has voluntarily proceeded on discharge or has expressed unwillingness to serve in sheltered appointment within the meaning of the Pension Regulations so as to disentitle him for the grant of disability pension or for the benefits under the scheme or it was discharge on medical grounds.

(13) Entitlement Rules as contained in Appendix Ii to the Pension Regulations says:-    "Invaliding from service is a necessary condition for the grant of a disability pension. An individual who at the time of his release under the Release Regulations is in a lower medical category than that in which he was recruited will be treated as invalided from service. JCOs/ ORs/NCs (E) who are placed permanently in a medical category other than 'A' and are discharged because of no alternative employment suitable to their low medical category can be provided as well as those who having been retained in alternative employment but are discharged before the completion of their engagement will be deemed to have invalided out of service."  

(14) Army Order 46/80 contains the instruction relating to Permanent Low Medical Category persons other than officers. The gist of instructions are that ordinarily, Permanent Low Medical Category persons will be retained in service till completion of 15 years of service in the case of J.C.Os and 10 years in the case of other ranks, subject to the availability of suitable alternate appointment commensurate with the medical category and that the same can be justified in public interest. They may also be continued to be retained in service beyond this period until they become due for discharge in the normal course, subject to their willingness and the fulfillment of the stipulation laid down therein. After the issuance of the instructions through Ministry of defense letter dated 10.5.1977, a Corrigendum was issued on 26.11.1979, which reads:-    "Retention in service in alternative employment, in terms of para 1 above, will ordinarily be for a period of 15 years in the case of JCOs and 10 years for Or. On completion of the aforesaid period of service personnel will be discharged with all convenient speed. However, personnel placed in permanent low medical category may continue to be retained beyond the periods specified above, untill they become due for discharge in the normal manner, subject to their willingness, provided they can be employed in sheltered appointments, their retention is in public interest and their retention will not exceed the sanctioned strength of the regiment/corps."  

(15) Retention in service in alternate employment is not compulsory but subject to numerous conditions and depends upon availability of the sheltered employment, willingness of an individual to serve on sheltered employment and that the retention is found to be in public interest. Retention cannot exceed the sanctioned strength of the regimental Corps. Another Corrigendum issued on 26.8.1982 to the aforementioned Army Order No.46/80, is to the following effect:-    "In accordance with para 5 of Ao 46/80, immediate action is required to be taken in the normal manner to carry out discharge of permanent low medical category personnel, as imperiously as possible. However, it has been projected by certain Record Offices that difficulties are being faced for Lmc (P) JCOs/OR, who are to be discharged due to lack of sheltered appointment/unwilling to continue under Army Rule 13 I(iii) and Army rule 13 Iii (v). Audit Authorities insist that such personnel must be discharged immediately as per orders as no time limit is allowed in such cases. Keeping in view the difficulties faced and the time taken by various agencies in settling numerous issues, the matter was re-examined at this Headquarters. It has, therefore, been decided that discharge drill must be carried out within six months from the date an individual has been placed as LMC(P) category personnel to Record Offices by the fastest means."  

(16) At this stage a reference may be made to the order passed on 27.11.1993 as regards the petitioner's retention after he was placed in Low Medical Category C(P), which says that retention in service of the petitioner has been approved w.e.f. 10.7.1993 for so long as he is held within the over all sanctioned strength of the Corps till completion of the term of engagement/retiring service limits or so far the sheltered appointment was available, whichever is earlier in terms of Government of India, Ministry of defense letter dated 10.5.1977.   

(17) Had the petitioner not been retained in sheltered appointment, it is not disputed that the petitioner would have been entitled also to the disability pension and disability benefits under the Scheme, in additional to the normal service pension. The petitioner was retained and provided the sheltered appointment on the basis of the Army Order 46/80, Government of India, Ministry of defense letter dated 10.5.1977, which reads:- "Retention in service in alternative employment in terms of para 1 above will ordinarily, be for a period of 15 years in the case of JCOs and 10 years for Or. On completion of aforesaid periods of service, personnel will be discharged with all convenient speed. However, personnel may continue to be retained in service beyond the period specified above subject to the fulfillment of the following conditions:- (a) Personnel placed in permanent low medical category 'B' will continue to be retained until they become due for discharge in the normal course, provided they can be suitably employed against a 'sheltered appointment'. (b) Personnel placed in permanent low medical category 'C' will be retained provided - (i) they are willing and can be suitably employed against 'Sheltered appointment's; and (ii) the strength of the category to which the individuals belong, on an overall regiment/corps basis, is below 95 per cent of the authorised establishment. Necessary control in this regard will be exercised by the Adjutant General. 3. Permanent low medical category personnel will, on discharge from Army, deemed to have been invalided out of service for purposes of para 1st March,1948 Entitlement rules, issued under this Ministry's letter No.13899/1 Pc dated 18 Apr 50. those who having been retained in administrative employment are eventually discharged before the completion of engagement/tenure, will also be accorded similar treatment. A medical board should be held on them before they are discharged for the purpose of assessment of the cause, nature and the degree of disablement. Their claims to disability pension be dealt within the normal manner and the disability pension will, if otherwise admissible under the rules, be based on their total length of service, rank and the accepted degree of disablement at the time of discharge or extended service in terms of para 2 above."

(18) It is not disputed that had the sheltered appointment not been provided to the petitioner, he in terms of letter dated 20.8. 1982 would have been discharged by 10.1.1994, namely, within a period of six months from the date of his being placed in low medical category (permanent). As the petitioner was retained in service in public interest, in terms of Government of India letter dated 10.5.1977, he was to be retained so long the sheltered appointment was available. He could have declined the sheltered appointment, when offered to him. It was not done. The petitioner did not express his unwillingness to serve and thus continued to serve but had ultimately to pray for being discharged. It was done by moving an application, which reads:- "I have the honour to state that I am handicapped (Rt leg below knee) JCO. My right leg was amputated at Base hospital Lucknow on 08 Feb 93 and till today I am not feeling comfortable due to pain at my right leg. It is an obstacle to discharge my duties. Therefore, I request you please grant me premature retirement."

(19) Having once acquired the eligibility for being granted the disability pension and disability benefits at a stage when the petitioner was placed in low medical category (permanent), he could not have been denied the benefit of the same in case he sought and was allowed discharge later on dut to the same ailment due to which he was placed in low medical category. Army Order 146/77 do suggest that category 'C' Jco embraces all personnels, who are not fit for active service with units/formation Head Quarter involved in actual fighting but are fit for such duties which do not involve severe strain. On the day when the above request was made, the petitioner had made a request for exemption to perform night duty because of his medical condition. The application dated 30.3.1994, in which he sought exemption stated that being handicapped, the doctors had placed him in low medical category and that the artificial limb cannot be worn by him for more than an hour, as such he was having constant pain in amputated right leg. When this request was not acceded to, which could have been allowed had instructions contained in Army Order 146/77 been correctly followed. Faced with this situations, the petitioner was left with no other option except to move an application for discharge on medical ground, which was also recommended on medical grounds by the Commanding Officer in the following words:- "JC-13449KSub (Trlr) Baljor Singh of this unit met with an Mt accident on 02 Feb 93 and was hospitalised. The Rt. leg (below knee) of the Jco was amputated at Base Hosp Lucknow on 08 Feb 93. The Jco was given an Artificial Limb and was placed in low med cat Cee (Permt) wef 10 Feb 93. There is no specific restrictions advised on the employability by the med auth except those specified under Ao 146/77. 2. The Jco has put an application for premature retirement from service on med grounds. The Jco is due for normal retirement in Mar 2003. 3. I have personally known the actual facts of the case of the Jco as he is not feeling comfortable due to recurring pain at his right leg. 4. Under these circumstances, having fully weighed the pros and cons of the case, the premature dish of this Jco from service is strongly recommended. Station: C/o 56 Apo sd/- Dated: 19 Apr 94 (J.S.Brar) Lt Col Commanding Officer."

(20) It was on the aforementioned recommendation that the petitioner was discharged. The discharge of the petitioner, may be on his own request, in the circumstances aforementioned above has to be treated as a discharge due to medical grounds, during the extended period of retention. It was not due to any other reason, but was due to medical grounds. Had it been on any other ground other than medical grounds, the petitioner would not be entitled to any relief. It was because of low medical category (permanent) that the petitioner was unable to discharge the duties during the extended period of service due to the duties. performance of which involved stress and strain not commensurate with the medical category of the petitioner. When discharge was sought on medical grounds and it was recommended also on medical grounds, such discharge has to be trated as a discharge on medical grounds. May be that for that purpose the petitioner submitted his request, which was duly recommended by the Commanding Officer that it was because of the medical condition of the petitioner as a direct result in the injuries sustained by him.

(21) In view of the above, the impugned orders, which proceeds on the basis that it was a simplicitor voluntary discharge and not discharge on medical grounds, being bad in law are liable to be quashed and set aside. Consequently, the writ petition is allowed. The impugned orders are quashed and set aside. The petitioner is held entitled to the disability pension and the disability cover under A.G.I.Scheme w.e.f. 31.8.1994, the date of the petitioner's discharge from service on medical grounds, in addition to the normal service pension. Respondents will work out the arrears becoming due and payable to the petitioner and will pay the same to the petitioner within a period of three months from the date of the receipt of writ order from the Court.