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W.A. No.1182 of 2009
17.2.2010
Ms. Kanak Gaharwar, learned counsel the
appellant.
There is delay in filing this appeal. For the
reasons stated in the application - I.A. No.12729/09
supported by an affidavit, the delay in filing this appeal
is hereby condoned.
Heard.
It is conceded at bar that the matter is covered
by the decision of this Court rendered in W.A.
No.1115/2009, W.A. No.1116/2009, W.A.
No.1117/2009, W.A.No.1118/2009, W.A. No.1119/2009
and W.A. No.1120/2009 decided as per common order
dt.27.1.2010, wherein following order was passed :
"1. All the aforesaid six intra-court appeals arise
from the common order of the learned Single Judge
dated 11.8.2009 allowing Writ Petition
No.2986/2009(S), W.P. No.2972/ 2009(S), W.P.
No.3282/2009(S), W.P. No.2935/2009(S), W.P.
No.2971/2009(S) and W.P. No.2973/2009(S) and
since facts and issues involved in these appeals are
common, they have been heard together and are
being disposed of by this common order.
2. It appears that the respondents were working in
the Army on different posts and in different capacities,
however they were discharged from service before
completion of their normal term of service on the
ground that they were placed in low medical category
without obtaining opinion of the Invalidating Medical
Board. It further appears that about 2300 such Army
personnel placed in low medical category were
discharged in similar manner. Many of them
approached various High Courts challenging the order
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of discharge inter alia on the ground that the
impugned order of discharge having been passed
without holding Invalidating Medical Board which is a
condition precedent, is illegal and arbitrary, and,
therefore, cannot be sustained. The matter ultimately
went to the Apex Court and their Lordships in Union
of India Vs. Rajpal Singh and others [(2009) 1 SCC
216] having considered the relevant provision held in
para 27 as under :-
“In view of the foregoing interpretation of the relevant
rule, we are in complete agreement with the High
Court that where a JCO is sought to be discharged on
the ground of medical unfitness for further service, his
case has to be dealt with strictly in accordance with
the procedure contemplated in Clause I (ii) in Column
2 of the Table appended to Rule 13. The Rule
prescribes a particular procedure for discharge of a
JCO on account of medical unfitness, which must be
followed and, therefore, any order of discharge
passed without subjecting him to the Invalidating
Board would fall foul of the said statutory rule.”
3. The Apex Court therefore held that a Junior
Commission Officer (JCO) cannot be discharged on
the ground of medical unfitness unless the procedure
prescribed in clause I(ii) in column 2 of Table
appended to Rule 13 is adhered to and its non-
compliance being in derogation of the Rule, the action
or the order in violation of requirement of rule cannot
be approved. Delhi High Court following the above
view of the Apex Court allowed Writ Petition(C)
No.5946/2007 [Subedar (SKT) Puttan Lal and
others] and other writ petitions vide judgment/order
dated 20.11.2008. Delhi High Court further, in order
to avoid unnecessary spate of litigation, directed that
individual option be sent to such Personnel Below
Officer Rank (PBOR) who have not approached any
Court till date within two months giving them an offer
to rejoin if they so desire as per directions in the writ
petition. It was further provided in the order that the
option letter will indicate that such option is to be
exercised within a period of 30 days of the receipt of
the letter and where the retiral and pensionary
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benefits have been paid, the amount liable to be
refunded by them is to be indicated in the option letter.
It was further provided that these directions are
applicable only to such Army personnels who have
been discharged or proposed to be discharged under
the policy letter dated 12.4.2007.
4. The Delhi High Court further quashed the
Integrated Army HQ letter
No.B/10201/06-08/Vol.I/MP-3 (PBOR) dated
12.4.2007 and letter of even number dated 27.6.2007.
Consequently, under the Integrated HQ MOD Army
letter No. B/10201/06-08/Vol.II/MP3 (PBOR) dated
2.12.2008, individual ‘Option letter’ were directed to
be issued to such discharged Army personnels to
rejoin the concerned Record Office at the earliest but
not later than 20.1.2009. In the present case, option
letters were given to the respondents directing them to
rejoin service with the deposition receipt of all
terminal benefits and bank drafts as required vide
para 2 of the option letter within 30 days from the date
of receipt of the same. The said option letter is on
record as Annexure P/3 alongwith the writ petitions.
Pursuant to the offer to rejoin service, the respondents
deposited the amount received by them towards
terminal benefits as required under Clause (2) of the
option letter, yet they were not allowed to join on the
ground of delay in depositing the amount received on
account of terminal benefits. The details of joining of
the respondents and the amounts deposited by them
are as under:
W.A. Option Received Joining Amount Delay in
No. letter on date deposited depositin
issued on g the
amount.
1115/09 10.1.09 21.1.09 28.2.09 26.2.09 & 07 days
4.3.09
1116/09 13.1.09 22.1.09 08.2.09 23.2.09 02 days
1117/09 13.1.09 20.1.09 19.2.09 27.2.09 08 days
1118/09 17.1.09 28.1.09 23.2.09 24.2.09 Nil
1119/09 8.1.09 14.1.09 26.2.09 4.3.09 19 days
1120/09 14.1.09 19.1.09 20.2.09 20.2.09 02 days
It is evident from the aforesaid chart that there is delay
of hardly few days in depositing the amount and only
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for that reason the respondents have not been
permitted to join their service. Aggrieved by the
aforesaid action, the respondents preferred the writ
petitions which have been allowed by the order
impugned in these appeals.
5. In our view, on account of delay of few days
which has been explained satisfactorily, the rightful
claim of the respondents cannot be denied. The
respondents have given explanation that few days
time has been consumed in arranging the amount
drawn by them against retiral benefits which in turn
resulted in delay in joining.
6. Shri Brian Da’ Silva, learned Senior Advocate,
vehemently contended that the writ petitions were not
maintainable before the learned single Judge as the
respondents were virtually seeking extension of time
fixed by the Delhi High Court in its order dated
20.11.2008 permitting the Army personnels to submit
their rejoining within one month and, thus, this Court
has no jurisdiction to modify or extend the same.
7. We are not impressed with the submission for
the reason that undisputedly the respondents did not
approach the Delhi High Court earlier against the
order of their discharge from service on the ground of
low medical category person and only when the Apex
Court held in Rajpal Singh (supra) that on the ground
of low medical category an Army personnel cannot be
discharged without taking opinion of an Invalidating
Board which is a condition precedent; the Delhi High
Court issued a general directions in Subedar (SKT)
Puttan Lal and others (supra) pursuant to which the
appellant vide letter dated 10.1.2009 asked the
respondents to join within 30 days. However, when
their joining was not accepted on account of delay of
few days, they filed the writ petitions before this Court.
In our view, this being the fresh cause of action which
arose within the territorial jurisdiction of this Court, the
writ petitions were maintainable and thus rightly
entertained by the learned Single Judge.
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8. The Delhi High Court in view of the exposition
of law by the Apex Court, applied the same principles
in respect of the Personnel Below Officer Rank
(PBOR) and further to reduce the burden of litigation
on Courts, issued a general direction in respect of all
Personnel Below Officer Rank who have not
approached any Court for extending the benefits of
the judgment which was upheld by the Apex Court.
9. The respondents have not challenged or sought
any modification in the judgment of the Delhi High
Court and are aggrieved only on account of refusal by
the appellant to accept their joining pursuant to their
option exercised in response to the appellant’s offer
and therefore it was a fresh cause of action for them
since they have been denied the benefit of the
judgment which was rendered in the light of the laws
laid down by the Apex Court merely on the ground of
delay of few days and; thus, we do not find any reason
to differ with the view taken by the learned single
Judge. That apart, it is a well settled legal proposition
of law that a beneficial statute is to be construed
liberally so that maximum people who are covered by
the same get its benefit. In the case in hand, it is not
in dispute that the respondents were discharged from
service without holding the Invalidating Medical Board
on the strength of the letters of the Chief of Army
Headquarter dated 12.4.2007 and 27.6.2007 which
were subsequently quashed by the Delhi High Court
and was upheld by the Apex Court, thus, the same
being contrary to law laid down by the apex Court in
the case of Rajpal Singh (supra), appellants
themselves called upon the respondents to rejoin the
service. However, there was delay on their part in
submitting the joining for which they have submitted
explanation, which are plausible and thus there was
no reason to reject the same.
10. No other point is urged on behalf of the
appellants.
11. The learned Single Judge rightly observed that
combined reading of the conditions given in paras 5
6
and 7 of the order of the Delhi High Court do not
support the stand of the appellants that joining within
30 days was imperative and failure would entail the
discharge and that would amount to denial of
substantive relief to the respondents whose right to
reinstatement got crystalised when the two orders of
the Staff Army Headquarter dated 12.4.2007 and
27.6.2007 were quashed. The order of discharge
once held to be illegal and set aside, the discharged
employee cannot be denied their rightful claim merely
on the ground of delay of few days which have been
explained.
12. We, therefore, do not find any merit in these
appeals. The same are accordingly dismissed.
However, there shall be no order as to costs.”
This appeal being similar is also dismissed in terms of
the above quoted order. No costs.
(Arun Mishra) (S.C. Sinho)
Judge. Judge.
Khan*