Delhi High Court

Subedar M.T.V. Kunhi Kannan ... vs Union Of India & Ors. on 25 September, 2008

Author: Sanjay Kishan Kaul

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     WP (C) No.698/1986


%                                          Date of decision: 25.09.2008


SUBEDAR M.T.V. KUNHI KANNAN NAMBIAR                     ...PETITIONER

                            Through:   Major K.Ramesh, Advocate


                                  Versus


UNION OF INDIA & ORS.                              ...RESPONDENTS

                            Through:   Ms.Barkha Babbar, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.      Whether the Reporters of local papers
        may be allowed to see the judgment?             No

2.      To be referred to Reporter or not?              No

3.      Whether the judgment should be
        reported in the Digest?                         No

SANJAY KISHAN KAUL, J. (Oral)

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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"

7. 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.

8. 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"

9. 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"

10. 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:

"2.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.

3. 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"

11. 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.

12. We are thus of the considered view that the petitioner

was entitled to continue in service till 30.11.1986 being