JUDGMENT
Mukundakam Sharma, J.
1. Being aggrieved by the action of the respondents in discharging the petitioner from service the present petition is filed is this court seeking for a direction to the respondents to reinstate the petitioner with all consequential benefits. The petitioner has also sought for an alternative relief in this case seeking for a direction to the respondents to grant him disability pension and other pensionary benefits in accordance with the Rules.
2. The petitioner was enrolled in the Indian Army on 16.1.1987. While serving with 404 Intermediate Repair Workshop, he was admitted to Military Hospital, Ahmedabad due to his disability viz. Neurosis (ICD-300). In view of the aforesaid disability the petitioner was down graded to low medical category BEE (Temporary) for six months from 4.4.1994. On review he was again placed in the same category for six months from 3.10.1994. Thereafter the petitioner was re-examined by the Medical Board and he was down graded to category BEE (Permanent) w.e.f. 3.4.1995. The Officer Commanding of 404 Intermediate Repair Workshop issued a show cause notice to the petitioner vide letter dated 23.5.1995 stating that the petitioner had been down graded to lower medical category BEE (Permanent) w.e.f. 3.4.1995 for two years vide order dated 16.5.1995. By the said notice the petitioner was asked to show cause as to why he should not be discharged from service being Permanent Low Medical Category person.
3. In reply to the aforesaid show cause notice the petitioner submitted a reply on 27.9.1995 in which the petitioner had stated that he had completed 8 years 8 months of service in Corps of Electrical and Mechanical Engineers (EME). It was also stated that he was not willing to serve in his present medical category and that he might be discharged from service on medical grounds. After receipt of the aforesaid reply from the petitioner the respondents issued orders discharging petitioner from service under item 3(v) of table annexed to Rule 13(3) of the Army Rules, 1954 on 31.3.1996. Consequent upon his discharge from his service disability pension claim in his favor was preferred to CCDA (Allahabad) for adjudication. The aforesaid prayer of the petitioner was however, rejected by order dated 21.5.1997 on the ground that the disability of the individual was considered as neither attributable to nor aggravated by military service and unconnected with service being a constitutional disease and not related to service. The petitioner was paid invalid gratuity and DCRG which were in the nature of terminal benefits. The fact regarding the rejection of his disability pension was communicated to the petitioner vide letter dated 20.6.1997 with advice to prefer an appeal against disability pension within six months from 21.5.1997 but the petitioner did not submit any appeal within the stipulated time. The petitioner served a legal notice on the respondents and thereafter filed the present petition only in the month of January, 2001.
4. It was contended by the counsel appearing for the petitioner that a person could be discharged from the Army service under the provisions of Section 22 of the Army Act in the manner prescribed under the Rules. The relevant rule in the present case in Rule 13 under which action was taken by the respondent. It was submitted by him that under Rule 13(3) action could be taken against the petitioner for his discharge in the manner prescribed in the said Rules. According to him the Competent Authority who is authorised to discharge in the case of the petitioner was Brigade/Sub-Area Commander as the case of the petitioner would fall either under Clause (v) or Clause (iv). He submitted that in the instant case the order of discharge was passed not by the Brigade/Sub-Area Commander but by the Officer Commanding and therefore, the said order is required to be quashed. It was also submitted by him that the petitioner was not discharged at his own request as is established from Annexure R-1 at page 8 and therefore, the stand taken by the respondent that the petitioner was discharged at his own request is belied by the records. He also submitted that the provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 applies to the facts and circumstances of the present case and since the appropriate government has not exempted Army from the application of the said rules the said provision is applicable to the petitioner and therefore, the petitioner should have been given an alternative appointment in terms of the said rules. It was also submitted by him relying on the contents of Annexure R-2 that the same was not signed by the petitioner and that therefore, could not have formed the basis for the alleged action against the petitioner.
5. Counsel appearing for the respondents however, submitted that after the petitioner was admitted to the Military Hospital due to his disability of Neurosis he was examined in the Hospital and after such examination he was down graded to low medical category BEE (Temporary) from 4.4.1994 and on review he was again placed in the same category from 3.10.1994 for six months. The petitioner was down graded to low medical category BEE (Permanent) from 3.4.1995 and thereafter he was brought before the Release Medical Board on 26.2.1996 who had opined the disability i.e. Neurosis (ICD-300) of the individual as neither attributable to nor aggravated by military service and unconnected with service being a constitutional disease and assessed at 20% for two years. It was submitted by her that therefore, a show cause notice was also issued to the petitioner under letter dated 23.5.1995 and since in reply thereto the petitioner stated that he was not willing to serve in his present medical category, he was discharged from service on his unwillingness to continue in employment under item 3(iv) of table annexed to Rule 13(3) of the Army Rules, 1954 on 13.5.1996.
6. According to the learned counsel in view of the aforesaid position none of the arguments of the counsel appearing for the petitioner could be accepted and that the provisions of Section 47 of the Act could also not be applicable to the facts and circumstances of the present case. She also placed before me the relevant records to indicate that the impugned action herein was taken on the orders of the Competent Authority namely – the Brigade/Sub-Area Commander.
7. In the context of the aforesaid submissions of the counsel appearing for the parties I have also perused the records. The records disclose that after proper medical examination the petitioner was down graded to low medical category BEE (Temporary) initially and thereafter on 3.4.1994 he was down graded to low medical category BEE (Permanent) from 3.4.1995. Accordingly, on being down graded to permanent low medical category BEE (Permanent) from 3.4.1995 a show cause notice was also issued by the respondents to the petitioner. In response to the said notice the petitioner stated that he was not willing to serve in the present medical category and sought for his discharge from service in view of his unwillingness to continue in the employment or in the alternative employment. Therefore, although the petitioner could have been given an alternative employment in accordance with the policy of the respondent but due to and because of specific request and statement of the petitioner that he was unwilling to continue in alternative employment the order of discharge was passed against the petitioner invoking the powers under item No. 3(v) of the table annexed to Rule 13(3) of Army Rules, 1954. The case of the petitioner was also placed before the Release Medical Board on 26.2.1996 which opined the disability i.e. Neurosis (ICD-300) of individual as neither attributable to nor aggravated by military service and unconnected with service being a constitutional disease and assessed at 20% for two years.
8. Therefore, the contention of the counsel appearing for the petitioner that the petitioner was fit for alternative appointment and should have been so provided with an alternative appointment is without any merit since the petitioner himself had stated that he might be discharged from service as he was unwilling to accept an alternative appointment. In that view of the matter even assuming that section 47 of the Act is applicable as suggested by the counsel appearing for the petitioner, the same shall have no application to the facts and circumstances of the present case, as the petitioner was unwilling to serve in any alternative employment and as he sought discharge from service on medical grounds. Therefore, the aforesaid submissions of the counsel appearing for the petitioner have no merit and are rejected.
9. As regards the submission that the order of discharge was not passed by the Competent Authority I have considered the records placed before me. The said records disclose that the discharge roll was sanctioned by the Commanding Officer on 15.2.1996. The show cause notice was issued by the Officer Commanding on 23.5.1995. In this connection reference may be made to the letter dated 13.11.1995 wherein it is stated that the personnel mentioned in Appendix ‘A’ namely the petitioner is, ordered for discharge from service as he is in permanent low medical category. Therefore, the said letter was issued by the Senior Record Officer on behalf of the OIC Records who was of he rank of Brigade/Sub-Area Commander. In that view of the matter the order of discharge was therefore, passed by the Competent Authority as prescribed under the Rules and no grievance could be made by the petitioner in that regard.
10. The counsel for the petitioner also sought to submit that there was no request of the petitioner seeking his discharge. In support of the said contention the counsel relied upon the document at page 8 wherein a certificate is given by Accounts Officer (Pension) that the individual has not been discharged at his own request. The said document is incorrect on the face of the records of the case for the reply of the petitioner to the show cause notice is on record which is signed by the petitioner and which states that he is not willing to serve in present medical category and that he should be discharged from service on medical grounds.
11. That being the position all the contentions of the counsel appearing for the petitioner are found to be without merit and stand rejected. The petitioner in the writ petition has prayed for an alternative relief for payment of disability pension. While rejecting his request for grant of the said pension it was specifically stated by the respondents that he could file an appeal before the Competent Authority, which the petitioner had not filed. The Release Medical Board which considered the case of the petitioner on 26.2.1986 has opined the disability i.e. Neurosis (ICD-300) of the individual, is neither attributable to nor aggravated by military service being constitutional in nature and not related to service. In view of the aforesaid medical opinion, no order could be passed at this stage in favor of the petitioner, as sought for by him. It shall however, be open to the petitioner to file an appeal to the appropriate and competent authority to seek redressal of his grievance in that regard.
12. The writ petition stands disposed of in terms of the aforesaid observations and directions.