Dr. Daya Shankar Mishra vs Union Of India (Uoi), Through The ...
2002 Latest Caselaw 1709 Del

JUDGMENT

Anil Dev Singh, J.

1. The appellant after passing M.B.B.S. from G.R. Medical College, Gwalior, joined the Army Medical Corps on December 7, 1965 as an emergency commissioned officer under Army Notification No. AI/15/S of 1962. In the year 1968, the Government of India lifted the emergency but the appellant was continued in service. The appellant is stated to have requested the respondents for release from the Army as he was allegedly granted admission in the subject of E.N.T. in the J.R. Medical College, Gwalior. The second respondent, the Director, Medical Services, Army Corps, Government of India, New Delhi, however, turned down the request of the appellant. Consequently, the appellant continued in service. After about serving for seventeen years, the appellant applied for grant of permanent commission. In 1982, a medical board was held in connection with the request of the appellant for grant of permanent commission. The medical board found him to be fit and classified in Shape I. Subsequently, the appellant is stated to have developed some dispute with his Commanding Officer Col. A.K. Sen, who allegedly had him admitted in the Military Hospital, Jallandhar, on November 15, 1982 as a psychiatric patient. According to the appellant, he was kept in isolation for a period of nine months under heavy guard. The appellant remained in the hospital until July 30, 1983. During the course of his stay in the hospital, on April 1983 he was invalidated by a medical board. It is the case of the appellant that on April 19, 1983 he filed a petition to the Chief of the Army Staff through proper channel against the finding of the medical board. Thereafter he filed a statutory complaint on September 2, 1983 to the first respondent. The appellant, however, was released from the Army on November 13, 1983. After his release from the Army, the Central Government rejected the aforesaid complaint on May 17, 1984. Subsequently, the appellant applied for grant of permanent invalid pension. Even this request was rejected by the Government of India on February 11, 1985. The appellant thereupon filed an appeal to the defense Minister's Appellate Committee on Pensions. On July 21, 1987, the appeal was rejected on the ground that the cause of invalidment was neither attributable to nor aggravated by military service. The appellant being aggrieved by his release from the Army and rejection of his statutory complaint, filed a writ petition, being No. 250/85, before the Gwalior Bench of the Mahdya Pradesh High Court. On June 26, 1992, the writ petition was rejected by the Madhya Pradesh High Court, Gwalior Bench, on the ground of lack of territorial jurisdiction of the High Court. Thereupon the appellant filed a Special Leave Petition before the Supreme Court against the order of the Gwalior Bench of the Madhya Pradesh High Court. The said Special Leave Petition being S.L.P. No. 1069/92 came to be dismissed on February 1, 1993 as withdraw. The Supreme Court, however, gave liberty to the appellant to move the appropriate court. Utilising the liberty granted by the Supreme Court, the appellant filed a writ petition being Civil Writ Petition No. 1858/93 seeking a writ for declaring the order dated November 13, 1983 releasing the appellant from service illegal. Besides, the appellant claimed reinstatement in military service with all consequential benefits as he would have earned but for the release order. That apart, the appellant inter alia claimed pension at admissible rates as per the rules.

2. The learned Single Judge rejected the writ petition as according to the learned Single Judge the appellant had not made out any case for interference. Aggrieved by the order of the learned Single Judge, the appellant has filed the instant Letters Patent Appeal.

3. We have heard the appellant as well as the learned counsel for the respondents. It was urged byu the appellant that the respondents failed to follow Rule 15A of the Army Rules, 1964 (for short 'the Rules') which has rendered the order of release dated September 13, 1983 as nugatory. In order to appreciate the submisison of the appellant we consider it appropriate to extract Rule 15A of the Army Rules. Rule 15A reads as follows:-

"15A. Release on medical grounds : (1) An officer who is found by a Medical Board to be permanently unfit for any form of military service may be released from the service in accordance with the procedure laid down in this rule.

(2) The President of the Medical Board shall, immediately after the Medical Board has come to the conclusion that the Officer is permanently unfit for any form of military service, issue a notice specifying the nature of the disease or disability he is suffering from and the finding of the Medical Board and also intimating him that in view of the finding he may be released from the service; every such notice shall also specify that the officer may, within fifteen days of the date of receipt of the notice, prefer a petition against the finding of the Medical Board to the Chief of the Army Staff through the President of the Medical Board;

Provided that where in the opinion of the Medical Board the officer is suffering from a mental disease and it is either unsafe to communicate the nature of the disease or disability to the officer or the officer is unfit to look after his interests, the nature of the disease or disability shall be communicated to the officer's next to kin who shall have the like right to petition.

(3) If no petition is preferred within the time specified in Sub-rule (2), the officer may be released from the service, by an order to that effect by the Chief of the Army Staff.

(4) If a petition is referred within the time specified in Sub-rule (2), it shall be forwarded to the Central Govt. together with the records thereof and the recommendation of the Chief of the Army Staff. The Central Government may, after considering the petition and the recommendation of the Chief of the Army Staff, pass such order as it deems fit."

4. According to the appellant, since he had filed a petition to the Chief of the Army Staff under Rule 15A of the Rules, he could not be released from service unless the petition was laid before the Central Government by the Chief of the Army Staff with his recommendation, and the Central Government on considering the petition and the recommendation of the Chief of the Army Staff had passed an order rejecting the petition. The appellant further contended that since the petition was not disposed of by the Central Government, the appellant could not have been validly released from the Army. As a sequitur it was canvassed that the order of release being in violation of Rule 15A is illegal and ought to be quashed.

5. We have considered the submissions of the appellant. The petition dated April 19, 1982 which the appellant purportedly filed against the findings of the Invaliding Medical Board needs to be noted. The petition reads as follows:-

"To

The Chief of the Army Staff

Army Headquarters,

New Delhi.

Through Proper Channel.

PETITION REGARDING FINDINGS OF INVALIDING MEDICAL BOARD.

Sir,

1. With reference to MH Jullundur Cantt letter No. 638/B/83 dated 11 Apr. 83, I have the honour to appeal to you regarding the findings of the Medical Board invaliding me out of service on account of Alcoholism (303). I beg to submit that I was commissioned in Army Medical Corps on 7 Dec. 1965 as an Emergency Commissioned Officer having no lien in state government. I was told at the time of commission that after three years you can be released and go back in civil. After completion of three years service I repeatedly put up for my release from Army during 1963 but I was not released and continued in Army as an emergency commissioned officer. I applied for permanent commission during 1982 but even in second chance I was not considered for PC.

2. You will appreciate Sir, that if I go out of service now after having put in more than 17 years of dedicated service how harsh a situation it will be for my family and myself. It is nothing but short of calamity that is be falling on me rendering me absolutely jobless and landing us almost to a state of starvation.

3. I shall therefore appeal to your honour, kindly consider my case in a sympathetic humane manner. I assure you that I will abstain from Alcohol. I may, therefore, be allowed to serve in the Army to complete my at least 20 years of service to enable me to earn my pension.

4. Thanking you,

Yours faithfully Sd/-           

(Major D.S. Mishra)"

Dated 19 April 92

6. As is evident from a reading of the aforesaid petition, nothing has been pointed out against the findings of the Medical Board invaliding him out of service on account of alcoholism. Rather the appellant admitted that he was taking alcohol inasmuch he had stated that he would abstain from taking alcohol. It needs to be noticed that after a petition is preferred under Rule 15A challenging the findings of a Medical Board, the Chief of the Army Staff is required to forward the same to the Central Government Along with his recommendation. In case no such petition is filed within fifteen days of the findings of the Medical Board that the officer is permanently unfit for any form of military service, he could be released from service by an order to that effect by the Chief of the Army Staff. In the instant case, the petition referred to above does not at all challenge the findings of the Medical Board. Therefore, this cannot be considered as a petitioner under Rule 15A of the Rules. In any event, the appellant was not released from service by the Chief of the Army Staff. The release of the appellant was effected only after approval was accorded for his invalidation by the Central Government vide its letter dated October 20, 1983. Thus, by implication the Central Government rejected the petition of the appellant. In any case, the statutory complaint for redressal of grievances of the appellant dated September 3, 1983 was considered and rejected by the Central Government on May 17, 1984. It is pointed out by the learned Single Judge that in the first instance when the writ petition was filed the appellant did not lay any challenge to his release on the ground of violation of Rule 15A of the Rules. Thus, it appears that this plea is an after thought and does not carry conviction. The appellant relied upon the decision of the Supreme Court in Capt. Virender Kumar v. Union of India , , to urge that the procedure under Rule 15A must be followed otherwise the release or termination is invalid for non-compliance of the procedural requirements. The decision is of no avail to the appellant as it appears to us that the petition filed by the appellant was not one under Rule 15A of the Rules since it did not challenge the findings of the Medical Board at all. Since the release of the appellant from the Army was not illegal or violative of the procedural requirements, the appellant cannot be given the benefit of continuation of service till the age of superannuation. Besides, as the appellant has not completed the minimum service of 20 years, he is not entitled to pension. He is also not entitled to disability pension as the disability was not attributable to or aggravated by the military service. In the circumstances, the appeal fails and is hereby dismissed.