[2019] 9 S.C.R. 851 851
SMT. SULEKHA RANI A
v.
UNION OF INDIA AND ORS.
(Civil Appeal No. 1280 of 2019)
B
JULY 16, 2019
[DR. DHANANJAYA Y. CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
C
Army Rules, 1954: r.13(3)(III)(v) – Army Jawan discharged
from service under the provisions of r.13(3)(III)(v) – He died six
years thereafter on 30 September 2007 – His wife (appellant) filed
O.A. claiming pension in respect of service rendered by her deceased
spouse in Indian Army on the ground that no Invalidation Medical
Board was held prior to discharge of her spouse – Armed Forces D
Tribunal dismissed the O.A. – On appeal, held: Show cause notice
issued to the spouse of the appellant was to the effect that he was
medically unfit – r.13(3)(III)(v) is in the nature of a residuary
provision – It covers all other classes of discharge or, in other words,
discharge which does not fall under the preceding categories – The
E
specific provision in regard to medical unfitness is provided in
r.13(3)(III)(iii) where a person is found medically unfit for further
service – The manner of discharge provided is, “only on the
recommendation of an Invalidating Board – The discharge of the
appellant’s spouse without convening an Invalidation Medical
Board, therefore, suffer from an illegality – r.13(3)(III)(v) upon which F
reliance was placed had no application to the case – It would not
operate in an area which is covered by medical unfitness – Appellant
entitled to family pension – For the purposes of computing family
pension, the service of the deceased spouse of the appellant is
deemed to have continued until 30 September 2007 – Army Act, 1950.
G
Allowing the appeal, the Court
HELD: The discharge of the appellant’s spouse without
convening an Invalidation Medical Board suffers from an illegality.
H
851
852 SUPREME COURT REPORTS [2019] 9 S.C.R.
A The respondents have relied upon the response purportedly
addressed by the Jawan to the notice to show cause issued to
him. The provisions Rule 13(3)(III)(v) upon which reliance has
been placed had no application to the case. It would not operate
in an area which is covered by medical unfitness. The case of the
appellant for grant of family pension deserves to be accepted.
B
For the purposes of computing the family pension, the service of
the deceased spouse of the appellant should be deemed to have
continued until 30 September 2007. No arrears of wages shall be
payable between the date of discharge and the date of death. The
arrears of family pension shall be paid to the appellant within a
C period of three months from the date of receipt of a certified
copy of this order. The appellant is accordingly held to be entitled
to family pension. [Paras 10, 11] [858-A-D]
Dharamvir Singh v. UOI (2013) 7 SCC 316 ; Union of
India v. Rajpal Singh (2009) 1 SCC 216 : [2008] 15
D SCR 879 – referred to.
Case Law Reference
(2013) 7 SCC 316 referred to Para 4
[2008] 15 SCR 879 referred to Para 4
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1280
of 2019.
From the Judgment and Order dated 28.03.2011 of the Armed
Forces Tribunal, Principal Bench, New Delhi in O.A. No. 452 of 2010
F and order dated 16.03.2016 in M.A. No. 185 of 2016 in O.A. No. 452 of
2010.
Majot K. Ramesh, Ms. Archana Ramesh, Vibhuti Sashant Gupta,
Ram Naresh Yadav, Advs. for the Appellant.
G Aman Lekhi, ASG, M. Khairati, Ms. Priyanka Das, Arvind Kumar
Sharma, Ms. Ragini Pandey, Advs. for the Respondent.
H
SMT. SULEKHA RANI v. UNION OF INDIA AND ORS. 853
The Judgment of the Court was delivered by A
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Admit.
2. This appeal arises from a judgment of the Armed Forces
Tribunal1 at its Principal Bench, New Delhi. While dismissing the Original B
Application filed by the appellant, the AFT has rejected her claim for
grant of pension in respect of the service rendered by her deceased
spouse in the Indian Army.
3. The spouse of the appellant was enrolled in the Army on 23
C
April 1994. He was posted at the Siachen Glacier from 13 September
1998. He was in SHAPE 1 medical category. On 30 August 2000, he
was downgraded to low medical category P2. He was then shifted to a
counter insurgency area in Jammu and Kashmir on 19 November 2000.
On 31 August 2001, he was discharged from service. About 6 years
after the discharge, he died on 30 September 2007, leaving behind him D
the appellant and their children. A proceeding was initiated before the
AFT for the grant of pension. This was denied to the appellant.
4. The grievance of the appellant is that no Invalidation Medical
Board was held prior to the discharge of her spouse. He was in SHAPE
1 medical category before being posted for 7 months at the Siachen E
Glacier. Relying on the decision of this Court in Dharamvir Singh v
UOI2, it has been submitted that a member of the force is presumed to
be in sound physical and mental condition upon entering service if there
is no contrary record at the time of entry. The submission is based on
the following extract from the decision: F
“24.2. A disease which has led to an individual’s discharge
or death will ordinarily be treated to have been arisen in
service, if no note of it was made at the time of the
individual’s acceptance for service in the Armed Forces.”
G
29.2. A member is to be presumed in sound physical and
mental condition upon entering service if there is no note
or record at the time of entrance. In the event of his
1
AFT
2
(2013) 7 SCC 316 H
854 SUPREME COURT REPORTS [2019] 9 S.C.R.
A subsequently being discharged from service on medical
grounds any deterioration in his health is to be presumed
due to service [Rule 5 read with Rule 14(b)]
Reliance is also placed upon the decision of this Court in Union
of India v Rajpal Singh 3 (“Rajpal Singh”). In that case, the
B Respondent, a Junior Commissioned Officer (JCO), was placed in the
permanent low medical category for a period of two years before he
was discharged. Before the expiry of this period, he was sent a notice to
show cause as to why he should not be discharged from service as no
sheltered appointment was available and his unit was deployed in a field
C area. A two judge Bench of this Court held his discharge invalid on the
ground that the Respondent had not been subjected to an Invalidating
Board under Rule 13(3)(I)(ii) of the Army Act, 19504.
5. On the other hand, Mr Aman Lekhi, ASG submitted in the
present case that a notice to show cause was issued to the spouse of the
D appellant on 2 March 2001. The show cause notice was in the following
terms:
“1. You have been placed in low medical category BEE (P) with
effect from 30 Aug 2000. You are willing to serve in present
medical category but no sheltered appointment is available for
E you in the unit. Therefore, it is proposed that you should be
discharged from service having placed in medical category lower
than AYE and not upto the required standard under the provisions
of Army Order 46/80 Rule 13(3) III (v) of Army Rules 1954.”
In response to this notice, a reply was addressed on 7 April 2001
F stating that though he wished to continue in the service of the Army,
since he was being discharged from service due to non-availability of a
sheltered appointment in the unit, he may be discharged in a manner that
would enable him to obtain other service in the civilian section. On the
basis of this response, it was urged that the Jawan had in fact accepted
his discharge and as a result, there was no necessity to appoint an
G
Invalidation Board. The order of discharge (it was urged) was not
appealed against in accordance with the provisions of law. The learned
ASG has submitted that the decision in Dharam Singh (supra) deals
3
(2009) 1 SCC 216
4
H “Army Act”
SMT. SULEKHA RANI v. UNION OF INDIA AND ORS. 855
[DR. DHANANJAYA Y CHANDRACHUD, J.]
with the provisions of Rule 14(b) and hence may not have application. A
Moreover it was urged that the spouse of the appellant had an Ectopic
Kidney and his condition was not caused or aggravated by military service.
It has been urged that the affliction was of a constitutional nature and
was not attributable to service in the Army.
6. In the present case, it is not in dispute before this Court that no B
Invalidation Medical Board was held. The show cause notice upon
which reliance has been placed is dated 2 March 2001 and reference is
made to Rule 13(3) (III) (v).
7. Rule 13 deals with Authorities empowered to authorize
discharge. It provides thus: C
“13. Authorities empowered to authorize discharge. (1) Each of
the authorities specified in column 3 of the Table below shall be
the competent authority to discharge from service person subject
to the Act specified in column 1 thereof on the grounds specified
in column 2. D
(2) Any power conferred by this rule on any of the aforesaid
authorities shall also be exercisable by any other authority superior
to it.
[(2A) Where the Central Government or the Chief of the Army E
Staff decides that any persons subject to the Act should be
discharged from service, either unconditionally or on the fulfillment
of certain specified conditions, then, notwithstanding anything
contained in this rule, the Commanding Officer shall also be the
competent authority to discharge from service such person or F
any person belonging to such class in accordance with the said
decision.]
(3) In this table “commanding officer” means the officer
commanding the corps or department to which the person to be
discharged belongings except that in the case of junior G
commissioned officer and warrant officers of the Special Medical
Section of the Army Medical Corps, the “commanding officer”
means the Director of the Medical Services, Army, and in the
case of junior commissioned officer and warrant officers of
Remounts, Veterinary and Farms, Corps, the “Commanding
H
856 SUPREME COURT REPORTS [2019] 9 S.C.R.
A officer” means the Director Remounts, Veterinary and Farms.”
In so far as is material to the discussion before us, Rule 13(3)(III)
provides as follows:
Category Grounds of Competent authority Manner of discharge
discharge to authorise
B discharge
Persons (iii) Having been found Commanding Officer To be carried out only on
enrolled under medically unfit for the recommendation of
the Act who further service. an Invalidating Board.
have been
attested
(iii) (a) Having been Commanding Officer The individual will be
C found to be in discharged from service
permanent low medical on the recommendations
category SHAPE 2/3 of Release Medical
by a medical board Board.
and when—
(i) no sheltered
appointment is
D available in the unit, or
(ii) is surplus to the
organisation.
(v) All other classes of Brigade/Sub-area The Brigade or Sub-area
discharge. Commander Commander before
ordering the discharge
E shall, if the
circumstances of the
case permit give to the
person whose discharge
is contemplated an
opportunity to show
cause against the
contemplated discharge.
F
8. Rule 13(3) (III) (v) is in the nature of a residuary provision. It
covers all other classes of discharge or, in other words, discharge which
does not fall under the preceding categories. The specific provision in
regard to medical unfitness is provided in Rule 13(3)(III)(iii) where a
G person has been found medically unfit for further service. The manner
of discharge provided is, “only on the recommendation of an Invalidating
Board”. The provision contained in Rule 13(3)(III)(iii)(a) which provides
for a discharge on the recommendations of the Release Board was
inserted on 29 May 2010 and hence, has no application to the present
case.
H
SMT. SULEKHA RANI v. UNION OF INDIA AND ORS. 857
[DR. DHANANJAYA Y CHANDRACHUD, J.]
9. In Rajpal Singh (supra), while interpreting 13 (3)(I) of the A
Rules, the Court noted that only cases which are not covered under a
specific head can be covered under a residual head:
“24. … It is plain that a discharge on the ground of having been
found “medically unfit for further service” is specifically dealt
with in Column (I) (ii) of the Table, which stipulates that discharge B
in such a case is to be carried out only on the recommendation of
the Invalidating Board. It is a cardinal principle of
interpretation of a Statute that only those cases or situations
can be covered under a residual head, which are not covered
under a specific head. It is, therefore, clear that only those C
cases of discharge would fall within the ambit of the residual
head, viz. I (iii) which are not covered under the preceding
specific heads. In other words, if a JCO is to be discharged
from the service on the ground of “medically unfit for further
service”, irrespective of the fact whether he is or was in a low
medical category, his order of discharge can be made only on the D
recommendation of an Invalidating Board. The said rule being
clear and unambiguous is capable of only this interpretation and
no other. (emphasis supplied)
The Court further noted that when the discharge was on the ground
of medical unfitness, the Rule prescribes a particular procedure for E
discharge. Thus, an order of discharge passed without subjecting the
officer to an Invalidating Board would be contrary to the statutory rule:
“27. 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 F
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, G
any order of discharge passed without subjecting him to
Invalidating Board would fall foul of the said statutory rule.”
(emphasis supplied)
H
858 SUPREME COURT REPORTS [2019] 9 S.C.R.
A 10. After considering the facts and material before us, we are of
the view that the discharge of the appellant’s spouse without convening
an Invalidation Medical Board suffers from an illegality. The respondents
have relied upon the response purportedly addressed by the Jawan to
the notice to show cause issued to him. The provisions Rule 13(3) (III)
(v) upon which reliance has been placed had no application to the case.
B
It would not operate in an area which is covered by medical unfitness.
11. Having weighed the nature of the relief that should be granted
to the appellant, we are of the view that the case of the appellant for
grant of family pension deserves to be accepted. We direct that for the
C purposes of computing the family pension, the service of the deceased
spouse of the appellant should be deemed to have continued until 30
September 2007. No arrears of wages shall be payable between the
date of discharge and the date of death. The arrears of family pension
shall be paid to the appellant within a period of three months from the
date of receipt of a certified copy of this order. The appellant is
D accordingly held to be entitled to family pension on the above basis.
12. We allow the appeal in the above terms and set aside the
impugned judgment of the Armed Forces Tribunal dated 28 March 2011.
In the circumstances of the case there shall be no order as to costs.
E
Devika Gujral Appeal allowed.
F
G
H